Opinion
FA134015455S
05-11-2016
Kileen Beaudette v. Darrick Collette
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Angelo L. dos Santos, Senior Judge.
This is an appeal from the decision of the family magistrate. A hearing was held on the defendant's appeal on February 24, 2016. The defendant was represented by counsel and the state was represented by an assistant attorney general. The court heard and considered the legal arguments of both attorneys.
The issues in the defendant's appeal from the decision of the family support magistrate include: (1) whether " home detention, " as defined in the Federal Conditions of Release document, constitutes incarceration as envisioned in the enactment of General Statutes § 46b-215e; (2) whether a condition of release that includes a prohibition against continuing employment or leaving the home to find new employment, thereby suspending the defendant's ability to pay child support as defined in § 46b-215e, is a form of home incarceration rather than " home detention"; and (3) whether a finding that the defendant has substantial assets under § 46b-215e allows the court pursuant to the Connecticut Child Support and Arrearage Guidelines (guidelines) to deviate from the presumptive child support and enter an order of child support for the period of November 6, 2013 through December 5, 2014. The court concludes that the defendant's home detention constituted home incarceration due to the prohibition against continuing employment or leaving home for employment purposes. Further the court concludes that the defendant's 401k retirement plan and income tax returns are substantial assets available to pay child support for the time period of November 6, 2013 through December 5, 2014.
FACTS
In her decision, the family magistrate did not rule on the issue of whether the defendant was incarcerated" for purposes of § 46b-215e, but did rule that the defendant had substantial assets as required by the statute to enforce the support order. The defendant, Darrick Collette, fathered two children with the plaintiff, Kileen Beaudette. On June 13, 2013, the defendant was arrested by federal authorities and was imprisoned for five days until his release to home detention. The relevant terms of the defendant's release were as follows: " (7) The defendant must . . . (p) participate in one of the following location restriction programs and comply with its requirements as directed . . . (ii) Home detention. [The defendant is] restricted to [his] residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities approved in advance by the pretrial services office or supervising officer . . ." However, a condition requiring that the defendant continue or actively seek employment was not checked off on the District Court's release form.
Section 46b-215e provides: " Notwithstanding any provision 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 and substantial assets, if any, in accordance with the child support guidelines established pursuant to [General Statutes] section 46b-215a. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order."
A support petition dated August 16, 2013 was filed by the Commissioner of Social Services on behalf of the plaintiff against the defendant, the acknowledged father of their two minor children. The court entered a temporary order of child support of $125 per week on November 6, 2013, based on the defendant's earning capacity prior to his arrest. On February 18, 2014, the defendant filed a motion to vacate the temporary support order. In a letter to the magistrate dated August 29, 2014, the Senior United States Probation Officer clarified that the condition to seek or maintain employment was not included in the defendant's conditions of release.
On April 15, 2015, the court entered a child support order, retroactive to December 5, 2014, ordering the defendant to pay $63 per week. On July 1, 2015, the defendant filed a brief in support of his earlier motion to vacate the temporary order. In his brief, the defendant argued that it was clear that he was barred from working per an order of the federal district court and that all of the earning capacity imputed to the defendant was based on his prior employment which was no longer available to him. The defendant also argued that the " home detention" to which he was subject to under the terms expressed in his conditions of release by the District Court amounted to " incarceration" as set forth in § 46b-215e, therefore requiring the court to modify the order. Thereafter, on July 30, 2015, the State filed an objection to the motion to vacate and a memorandum in support. In the memorandum of support, the State argued that the provisions of § 46b-215e do not apply in the present matter because the defendant's home detention did not amount to incarceration under the statute.
A hearing was held before the magistrate on December 16, 2015, where the issues surrounding the defendant's motion to vacate and motion to modify the support orders of November 6, 2013 and April 15, 2015 were heard. The defendant's counsel argued that the issue of whether the defendant had any substantial assets could not be considered without first ruling on whether the defendant's home detention amounted to incarceration under § 46b-215e. In denying the motion to vacate, the court did not rule on the issue of whether the defendant's home detention amounted to incarceration under § 46b-215e, and instead found that the defendant had substantial assets in the form of a 401k retirement account and income tax returns that could be considered in determining the amount of child support. In addition, the court granted the defendant's motion to modify, effective December 18, 2015, due to the defendant's upcoming incarceration in a federal prison on that date, with the condition that the support order was to be automatically reinstated sixty days from the date of his release from prison.
The magistrate did not order the defendant to liquidate or transfer his 401k account, but did, in fact, find that the 401k account was an asset that could be considered by the court under the guidelines.
DISCUSSION
The defendant appeals from the decision of the family magistrate denying his motion to vacate the temporary support order that was entered between November 6, 2013, and December 5, 2014, when the order for $63 per week was entered. General Statutes § 46b-231(n)(1) provides that, " [a] person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section." Subsection (7) establishes that, " [t]he Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (13) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (13) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
" The appeal shall be conducted by the Superior Court without a jury and shall be confined to the record and such additional evidence as the Superior Court has permitted to be introduced. The Superior Court, upon request, shall hear oral argument and receive written briefs." General Statutes § 46b-231(n)(6). " [F]actual findings of family support magistrates" are reviewed " under the clearly erroneous standard of review" which " provides that [a] [magistrate's] determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made . . . It is the family support magistrate's function to weigh the evidence and to determine credibility and [the reviewing court gives] great deference to his or her findings . . . In reviewing factual findings, [the court] do[es] not examine the record to determine whether the [magistrate] could have reached a conclusion other than the one reached . . . Instead, [the court] make[s] every reasonable presumption . . . in favor of the [magistrate's] ruling . . . The clearly erroneous standard imposes on the appellant a heavy burden of persuasion." (Citations omitted; internal quotation marks omitted.) Commissioner of Social Services v. Joyner, 136 Conn.App. 826, 832, 51 A.3d 1139 (2012).
At a hearing before this court on February 24, 2016, counsel for the defendant and for the State represented that there was an error of law in the magistrate's decision to deny the motion to vacate because the magistrate did not address whether the defendant's " home detention" amounted to incarceration under § 46b-215e. The parties represented that in order to determine whether the defendant had any substantial assets that could be considered in the child support order, the magistrate was first required to rule on the incarceration issue. In arguing that a ruling on the defendant's status must be made, the defendant's counsel represented that he was effectively incarcerated under the statute because the conditions of his release did not allow him to leave the home for employment purposes.
Specifically, the defendant relied on a letter written by Nicole Owens, a Senior United States Probation Officer, stating in relevant part: " [The defendant] has been placed in the home detention category of the federal location monitoring program. The definition of our home detention program is as follows: 'You are restricted to your residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities approved in advance by the probation office .' In order to enforce any employment condition, the Court would have included the following individual condition: (b) 'The defendant shall seek or maintain employment .' However, since the Court did not include this condition, my office cannot allow [the defendant] [to] leave for employment." (Emphasis in original.)
In order to address the magistrate's finding that the defendant's 401k account and income tax returns are substantial assets that can be considered in determining the amount of the child support order, this court must first determine whether the defendant's home detention amounted to incarceration under § 46b-215e. Case law from other jurisdictions is instructive in the present matter as the restraint on the defendant's freedom is significant to finding that the home detention amounted to his incarceration. In Elder v. Scolapia, 230 W.Va. 422, 738 S.E.2d 924 (2013), the Supreme Court of Appeals of West Virginia stated: " [W]e find the existence of significant restraints on Petitioner's freedoms to be indicative of whether he is 'incarcerated' for the purposes of post-conviction habeas review . . . Petitioner does not enjoy the liberty to freely wander the physical confines of his yard, let alone his community, this state, or this country. Virtually every decision that he makes with regard to exiting his house is subject to the terms of the home incarceration order." (Citations omitted.) Id., 427-28. Moreover, the Supreme Court of Rhode Island, in State v. Quattrocchi, 687 A.2d 78 (R.I. 1996), stated: " We are persuaded that home confinement is a form of imprisonment during which an employee's liberty is significantly restrained. Black's Law Dictionary 757 (6th Ed. 1990), in defining 'imprisonment, ' observes: 'It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an 'imprisonment, ' whether it be in a prison, or in a private house . . .") Id. 79-80.
In the present case, the defendant's restriction was significant under the District Court's terms of release. Under the terms of his home detention, the defendant was restricted to his mother's residence at all times except for " employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities approved in advance by the pretrial services office or supervising officer . . ." (Emphasis added.) More significant, however, is that the defendant's probation officer indicated that he was not granted permission to leave his residence for employment purposes. Further, the defendant was effectively unable to seek in-home employment due to his restriction from using computers or any devices with access to the Internet. Such factors, combined with the fact that the defendant was fitted with an electronic monitoring device to track his movement, indicate that the defendant's home detention, in the present case, was, in effect, home incarceration for the purposes of § 46b-215e. The court concludes, after considering the facts of the present case, that the defendant's home detention amounted to home incarceration under the statute.
The defendant's probation officer noted: " In addition to the standard conditions of release the Court also ordered the following special conditions: (1) The defendant shall be placed in the custody of his mother, who agreed to supervise the defendant in accordance with his conditions of release; (2) The defendant was prohibited from accessing or possessing sexually explicit materials involving minors; (3) The defendant shall submit to pretrial supervision; (4) The defendant shall surrender his passport to defense counsel, and not obtain a new one; (5) The defendant's travel shall be restricted to the District of Connecticut; (6) The defendant shall have no direct/indirect contact with victims, witnesses, or any individuals known to be depicted in any of the images in the possession of the Government; (7) The defendant shall not possess any firearms or dangerous weapons; (8) The defendant shall submit to location monitoring with home detention; (9) The defendant shall have no unsupervised contact with any minor under the age of 18, without permission from the Probation Office; (10) The defendant shall not use computers or devices that have access to the internet without permission of the Probation Office. Any computers or internet capable devices in the residence shall be password protected; (11) The defendant shall not frequent parks, schools, playgrounds and other places where minors dwell."
Next, the court must determine whether the magistrate's ruling that the defendant's 401k account and income tax returns qualified as substantial assets under § 46b-215e allowing the court to deviate from the presumptive child support amount pursuant to the guidelines for the period between November 6, 2013 and December 5, 2014. While there is no language under the statute to indicate whether a 401k account amounts to a substantial asset, the language of the guidelines provides insight because as a part of the gross income inclusions for child support, pension and retirement income is included. See Regs., Conn. State Agencies § 46b-215a-1(11)(A)(xii); see also Fagan v. Fagan, Superior Court, judicial district of Middlesex, Docket No. FA-11-4020019-S, (June 11, 2013, Munro, J.) (including retirement account as a substantial asset). Therefore, the court concludes that the defendant's 401k account and income tax returns are substantial assets for determining the defendant's child support payments between November 6, 2013 and December 5, 2014.
CONCLUSION
For the aforementioned reasons, the defendant's home detention constituted home incarceration due to the prohibition against continuing employment or leaving home for employment purposes. Furthermore, the defendant's 401k retirement plan and income tax returns are a substantial asset available to pay child support for the time period of November 6, 2013 through December 5, 2014. The decision of the Family Magistrate is affirmed.