Opinion
No. FA03-0082030
January 18, 2005
MEMORANDUM OF DECISION
This is a paternity action commenced by the State of Connecticut pursuant to its authority under section 46b-162 of the General Statutes. The named plaintiff Sara Biafore gave birth to the minor child Cassandra L. Biafore on February 7, 2003. She alleges that the defendant is Cassandra's father.
The defendant failed to appear in court on the return date. However, he responded to the State's Motion for Default and presented himself on October 14, 2003. His request for court-appointed counsel was granted and Attorney Robert D. Haun was designated to represent him. There were subsequent delays because the plaintiff missed a court date, and, later the court appointed Attorney Kenneth Morey as attorney and guardian ad litem for the minor child. DNA results were admitted into evidence indicating a combined paternity index of 926,474 to 1 or a probability of paternity of 99.99%. After a hearing the defendant was adjudicated to be Cassandra's father.
The parties are at issue over the amount of support and the arrearage for past due support. A trial was held before this court on those issues. Subsequently the defendant filed a brief and Attorney Morey filed a report of the guardian ad litem which also presented his legal argument on behalf of the child. The State and the plaintiff did not file briefs.
The defendant claims that he is disabled, and that his sole present source of income is Supplemental Security Income (SSI). He claimsthat by law his support order should be zero. The State argues that his history of employment, even during periods of eligibility for social security and that he continues to have an earning capacity. Accordingly the State reasons that he should be ordered to pay child support and charged an arrearage for past due support. The child's attorney argues that a support order should enter based on the defendant's earning capacity and the best interests of the child.
At the hearing on the paternity issue the plaintiff filed a financial affidavit indicating part-time employment at Animal City earning gross income of $163.30 per week or $146.30 net weekly income. She did not complete or total her weekly expenses on that affidavit. She did indicated rent of $200 per month, $120 per week for diapers and wipes and $20 per week on her liabilities. She did not indicate any expenses for food, utilities or transportation. Her subsequent financial affidavit indicated that her income had decreased to $94.25 gross and $87.05 net per week at D'Angelo's. Her total expenses were $105.82 per week but still excluded such necessities as food and utilities. The plaintiff is not earning sufficient income to support herself and her child and as a result has received Temporary Family Assistance (TFA) from Cassandra's birth up to the date of the hearing. The total amount of State cash assistance paid was $6,854. She testified that the defendant had never provided her any monetary child support although he had on occasion provided diapers. She was aware that the defendant had maintained "a couple of jobs" and also that he received SSI. Yet when asked if she was seeking child support or back support, she responded: "Whatever the Court — I'm just trying to get through the proceedings." Transcript, 5/11/2004, p. 21.
First the Court must determine the current support order for Cassandra. The court must initially ascertain the incomes of each of the parties. Support must be determined utilizing the Child Support Guidelines which "require the court to first determine the presumptive support order prior to applying any deviation criteria. Regs., Conn.State Agencies § 46b-215a-3-(a); Arias v. Macedo, 14 S.M.D., 6 Conn.Ops. 1335, 2000 Ct.Sup. 12916 (2000)." Perez v. Vazquez, 16 S.M.D., 2002 Ct.Sup. 5046 (2002). Each party submitted a sworn financial affidavit at the initial hearing. As mentioned previously, the plaintiff mother's most recent financial affidavit indicated her income of $94.25 gross and $87.05 net per week from D'Angelo's plus her TFA award which is exempt.
The defendant father claims to be disabled. He provided a computer print-out from the Social Security Administration (Defendant's Exhibit 1) verifying that he receives SSI benefits of $406.50 per month with an eligibility date of November 28, 1997. He claims to have no other employment or income at this time. The State challenges his claim to SSI benefits because he failed to bring updating documentation to the last evidential hearing. Although the court can envision cases where updating may be appropriate or even crucial, in the present case, the verification dates only a few months prior to the hearing. The court has no reason to believe it to be stale, given the sworn testimony of the defendant, his sworn financial affidavit, and the confirmation of even the plaintiff that he receives SSI.
The statement from the Social Security Administration clearly states that the award paid to the defendant is Supplemental Security Income (SSI). Under our law, SSI is wholly excluded as income for child support purposes. Regs., Conn. State Agencies § 46b-215a-l (11)(B)(ii); Marrocco v. Giardino, 225 Conn. 617 (2001), 767 A.2d 720 (2001); Allard v. Allard, Superior Court, Judicial District of New London at Norwich, Doc. No. FA86-0086656, 2002 Ct.Sup. 14163 (Swienton, 1, Nov. 4, 2002); Lively v. Barnaby, 18 S.M.D. ___, 2004 Ct.Sup. 14329 (2004).
Section 46b-215a-l of the Regulations of Connecticut state Agencies provides in relevant part:
Definitions: As used in sections 46b-215a-1, 46b-215a-2a, 46b-215a-3, 46b-215a-4a and 46b-215a-5a . . . (II) "Gross income" means the average weekly earned and unearned income from all sources before deductions, including but not limited to the term listed in subparagraph (a) of this subdivision, but excluding the items listed in subparagraph (b) of this subdivision. (A) Inclusions: The gross income inclusions are: (i) salary; (ii) hourly wages for regular, overtime, and additional employment up to a maximum of 52 total paid hours per week; (iii) commissions, bonuses and tips; (iv) profit sharing, deferred compensation and severance pay; (v) employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of or in addition to salary or wages); (vi) military personnel fringe benefit payments; (vii) benefits received in place of earned income including, but not limited to, workers' compensation benefits, unemployment insurance benefits, strike pay and disability insurance benefits; (viii) veterans' benefits; (ix) social security benefits (excluding Supplemental Security Income [SSI]), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined; (x) net proceeds from contractual agreements; (xi) pension and retirement income; (xii) rental income after deduction of reasonable and necessary expenses; (xiii) estate or trust income; (xiv) royalties; (xv) interest dividends and annuities; (xvi) self-employment earnings, after deduction of all reasonable and necessary business expenses; (xvii) alimony being paid by an individual who is not a party to the support determination; (xiii) regularly recurring gifts, prizes, and lottery and gambling winnings (except as provided in paragraph [B] [iv] of this subdivision); and (xix) education grants (including fellowships or subsidies that are available for personal living expenses).
(B) Exclusions: The gross income exclusions are: (i) support received on behalf of a child who is living in the home of the parent whose income is being determined; (ii) federal, state and local public assistance grants; (iii) earned income tax credit; and (iv) the income and regularly recurring contributions or gifts of a spouse or domestic partner . . .
(Emphasis added.)
The State argues that notwithstanding the determination of the Social Security Administration, the defendant has an ability to pay child support based on earning capacity. The defendant has in fact engaged in employment at various times since he became eligible for SSI. The child's representative also points to the defendant's own expressed desire to pay minimal child support.
At the hearing, the following colloquy took place:
MR. MORLEY: Do you want to pay any money for your daughter to help her out, support her and her future. Cassandra?
MR. BOZEMAN: Yeah, of course, if I had a choice, I'd be glad to support her, like I'm supporting her now.
MR. MORLEY: So you want to participate a little, to try to support her to the best of your ability.
MR. BOZEMAN: Yes, to the best of my ability.
MR. MORLEY: How much do you think that you could support her per week if you were to support her at this time?
MR. BOZEMAN: I could say . . .
MR. MOREY: Could you speak up, sir?
MR. BOZEMAN: "If I had a choice to support her, I could support her like $40 a month. That's the most I could do. If I was in a place to where I had to support her and stuff. But I basically support her on my own, you know, whenever I run into some money.
Transcript, 5/11/2004, p. 36.
The State produced evidence regarding prior employment, some of which was acknowledged by the defendant. The defendant worked for Burger King from December 18, 2001 through July 31, 2002. His hourly wage was $6.70. He then worked at Papa Ginos from July 31, 2002 until September 15, 2002. He averaged 11.5 hours per week earning $7.25 per hour. He was employed by MHC Services LLC from October 28, 2002 through March 9, 2003. He earned $7.00 per hour. He worked a total of 53 hours in January 2003; 29 hours in February and 8 hours in March. He also worked for Adams Super Foods during the third quarter of 2002. He earned a total of $225.56 from Adams and worked for them only within that calendar quarter. At no time did he work more than 20 hours in a given week. There was no evidence of any employment or any income other than SSI in calendar 2004.
The defendant insisted that he had never worked for MHC Services. However, State's Exhibit B affirmatively establishes such employment. It appears that MHC Services is a franchise holder of Burger King Restaurants. The defendant admitted working for Burger King and makes no distinction between the franchise and the corporation for whom he previously worked.
The State and the attorney and guardian ad litem rely on the Appellate Court's decision in Tevolini v. Tevolini, 66 Conn.App. 16, 783 A.2d 1157 (2001) to support their argument that in spite of the disability determination the court should impute an earning capacity to the defendant. The Tevolini court held that the social security award was not determinative of the defendant's disability and that the plaintiff could not be denied an opportunity to explore the issue of the defendant's health at trial. "We conclude that the [trial] court could not properly infer that the defendant's qualification for and receipt of social security disability payments foreclosed discussion as to the issue of her health . . ." Id., 30.
There are about half a dozen cases that appear to follow Tevolini. In Santoro v. Santoro, Superior Court, Judicial District of Hartford at Hartford, Doc. No. FA 95-0546022, 33 Conn. L. Rptr. 418, 2002 Ct. Sup. 16399 (Robaina, J., Dec. 13, 2002), the court held that "[a] citation to a decision of the Social Security Administration indicating that a person is disabled is not sufficient." See also Suchinski v. Conely, Superior Court, Judicial District of Waterbury at Waterbury, Doc. No. FAO2-0172508, 2003 Ct.Sup. 14104 (Leheny, J., Dec. 9, 2003); Rio v. Rio, Superior Court, Judicial District of Middlesex at Middletown FA-03-0100766, 2003 Ct.Sup. 13141 (Aurigemma, J., Nov. 6, 2003); Fournier-Lefebre v. LeFebvre, Superior Court, Judicial District of Windham at Putnam, Doc. No. FA-01-0067046, 2004 Ct.Sup. 610 (Swienton, J., Jan. 6, 2004) ("Although the plaintiff is presently receiving social security disability, there was no credible evidence to indicate her inability to obtain any type of employment either at present or in the future").
The defendant relies on the Supreme Court's decision in Marrocco v. Giardino, 255 Conn. 617, 767 A.2d 720 (2001) and recent statute, Public Act No. 03-130 § 1 (b) as essentially shielding him from any child support liability. "Under federal law, 42 U.S.C. § 407, an obligor cannot be compelled to pay child support out of SSI disability payments. This statute bars child support orders from a person whose only income is from SSI benefits. See Davis v. Office of Support Enforcement, 341 Ark. 349, 358, 20 S.W.3d 273 (2000). SSI benefits and any state supplementation are excluded from the determination of gross income for purposes of ascertaining child support `. . . SSI is a federal social welfare program designed to provide a guaranteed minimum income level necessary for the subsistence of individuals who cannot work because of age, blindness or disability.' Marrocco v. Giardino, 255 Conn. 617, 630, 767 A.2d 720 (2001), citing Schweiker v. Wilson, 450 U.S. 221, 223, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Child Support and Arrearage Guidelines (1994) preamble, Sec. (f)(1)(c), p. viii, Young v. Young, 802 S.W.2d 594, 598 (1990)." Allard v. Allard, Superior Court, Judicial District of New London at Norwich, Doc. No. FA86-0086656, 2002 Ct.Sup. 14163 (Swienton, J., Nov. 4, 2002).
Although it would appear that Allard contradicts Tevolini, Judge Swienton added a footnote that specifically disclaimed any such contradiction. Thus notwithstanding a disability determination, the adverse party would be entitled to provide evidence of actual earnings to establish an ability to pay child support. "However, it is hard to fathom how a court could impute an earning capacity and set a support order based on it while vouchsafing all SSI benefits from being used to pay child support." Lively v. Barnaby, 18 S.M.D. ___, 2004 Ct.Sup. 14329 (2004).
The General Assembly made the distinction academic by passage of Public Act No. 03-130, which inter alia precludes the court from deviating by reason of earning capacity when the obligor receives specific types of public assistance benefits including SSI. The legislative history of the public act makes it very clear that the intent of the act was to take SSI "out of the mix" in determining child support. Representative Stone testified at the May 20, 2003 public hearing on the act and stated that "[i]n this particular case and with this particular bill, what we're saying is that if it's determined that an obligor of child support is eligible and is receiving those benefits from the federal government, that the magistrate or the court, in awarding a child support order, cannot look to that income as earning capacity or as computed [sic] income to the obligor . . . It takes this disability income out of the mix for determining child support." 46 H.R. Proc., Pt. 11, 2003 Sess., pp. 3459-60, Remarks of Representative Christopher R. Stone.
Public Act No. 03-130 provides in relevant part:
(b) In any determination pursuant to subsection (a) of this section, when a party has been determined by the Social Security Administration, or a state agency authorized to award disability benefits, to qualify for disability benefits under the federal supplemental Security Income Program, the Social Security disability program, the state supplement to the federal Supplemental Security Income Program, the state-administered general assistance program or the general assistance program, parental earning capacity shall not be a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income.
Representative Stone's remarks also make it clear that the case law was considered in making the change:
There have been cases in the State of Connecticut which have made just that finding. However, there still are some magistrates who notwithstanding the case law, do award child support based upon disability payments. Those cases, for anyone's reference, are Morocco vs. Guardino and Allard vs. Allard. This bill is a common sense bill to what is, at times, a very difficult problem . . . I think it's fair, given the very strenuous, very strict guidelines for receiving SSI and SSD payments from The federal government . . .
46 H.R. Proc., Pt. 11, 2003 Sess., pp. 3459-60, Remarks of Representative Christopher R. Stone.
The child's attorney also argues that the statute unconstitutionally discriminates against his client. He argues that because the statute disallows deviation based on earning capacity for obligors receiving SSI the effect is to place an unfair financial burden on the custodial parent, who must expend financial resources on the minor child in the home even if her income is limited to SSI, hence denying his client, the child, of equal protection.
"In the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face . . . A judicial holding that a legislative [a]ct is unconstitutional is one of very grave concern." State v. Reynolds, 264 Conn. 1, 65, 824 A.2d 611 (2003); Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 320, 732 A.2d 144 (1999). "It is important, at the outset, to recognize that the challenge of any state statute on constitutional grounds imposes a difficult burden on the challenger . . . [W]e have consistently held that every statute is presumed to be constitutional and have required invalidity to be established beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 647-48, 775 A.2d 947 (2001). While the child's attorney makes an intriguing theoretical argument, there is insufficient basis, at least in this forum, to undertake a constitutional review of the public act. Naglak v. Ashline, 37 Conn. L. Rptr. 261, 2004 Ct.Sup. 9286 (Graziani, J., June 14, 2004).
The clear language of the statute allows actual earnings to be considered for calculating child support not withstanding the disability determination by the other agency. Although the evidence is clear that the defendant worked in the past even while receiving SSI, there is no evidence that he has done so since some point in 2003. An inquiry as to whether the defendant has valid medical reasons to decline further pursuit of work, or whether he retains an earning capacity, are precluded by Public Act No. 03-130.
In addition to the unambiguous language, the legislative history, including proponent comments at public hearings support the inclusion of such income. For example, the report of the judiciary committee summarizes the written testimony of Raphael L. Podolsky, Legal Assistance Resource Center of Connecticut, Inc. as follows:
This legislation attempts to resolve these problems by precluding any such persons from having the earning capacity imputed onto them under a given deviation criterion. The legislation will apply only where a government agency has made determination of a disability. The bill shall not in any way preclude the counting of actual income earned by a disabled person for the purposes of calculating child support liability.
(Emphasis added.) Conn. Joint Standing Committee, Judiciary, Report No. 590.
Nor is the court persuaded that the defendant's expressed desire to help support his daughter is sufficient cause to deviate from the guidelines. While it is true that the defendant ventured an opinion that he could pay $40 per month to support the child, he conditioned this offer on his ability to "run into some money." The only basis to convert this offer into child support is to consider the defendant's testimony to be an admission of his own earning capacity. Hence proposal remains an earning capacity deviation and it remains precluded by the public act.
The court finds no other reason to deviate on the current support order. Accordingly the court finds the defendant's only income, SSI, is exempt for child support purposes. The presumptive guidelines amount is zero. The current support order is set at $0 per week plus $0 per week on the arrearage.
Next the court must determine the defendant's liability for past due support or arrearage. Recently this court considered the issue of whether Public Act 03-130 is to be applied retrospectively or prospectively. In Lively v. Barnaby, 18 S.M.D. ___, 2004 Ct.Sup. 14329 (2004), the court concluded that the act was intended to apply retrospectively. Therefore the court is precluded from considering earning capacity in computing the arrearage as well.
"Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. (citation omitted) In order to determine the legislative intent, we utilize well-established rules of statutory construction." 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); Ballinger v. Wingate, 18 S.M.D. ___, 2004 Ct.Sup. 6140 (2004).
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 be construed to have a retrospective effect."
"This presumption in favor of prospective applicability, however, may be rebuffed when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively . . . Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect . . . We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect . . . (Citation omitted; internal quotation marks omitted.) Oxford Tire Supply v. Commissioner of Revenue Services, supra, 253 Conn. 69 1-92.
"Statements of purpose, committee reports, and floor debate are all legitimate sources of legislative intent. See, e.g., Nationwide Ins. Co. v. Gode, 187 Conn. 386, 391 n. 5, 446 A.2d 1059 (1982) (floor debate); Tax Commissioner v. Estate of Bissell, supra, [ 173 Conn. 232, 246,] 244-45, [ 377 A.2d 305 (1977)] (statement of purpose); Connecticut Rural Roads Improvement Assn. v. Hurley, 124 Conn. 20, 26, 197 A. 90 (1938) (committee reports)." Burge v. Stonington, 219 Conn. 581, 594-95, 594 A.2d 945 (1991).
"The legislative history of senate bill number 859 which became Public Act No. 03-130 suggests that the statute was intended to elucidate existing law by settling what appeared to be conflicting court decisions. `This legislation would clarify that, if an obligor (i.e., non-custodial parent) has been determined to be disabled by an agency such as the Social Security Administration or the state, a family support magistrate applying the given Child Support Guidelines shall be unable to ignore this determination by imputing earning capacity to the obligor as a deviation criterion.' (Emphasis added.) Conn. Joint Standing Committee, Judiciary, Report No. 590.
This contrasts with the legislative history of Public Act No. 03-258, which has been held to create new substantive law. Ballinger v. Wingate, 18 S.M.D.,2004 Ct.Sup. 6140 (2004).
In addition, Senator McDonald stated that the ` bill is intended to make clear that if a non-custodial parent has been determined to be disabled by the Social Security Administration or the state, a family support magistrate applying the child support guidelines cannot ignore that determination by forcing the non-custodial parent to reprove that disability in the child support context.' (Emphasis added.) 46 S.Proc., Pt. 6, 2003 Sess., p. 1813, Remarks of Senator Andrew McDonald. Witness testimony at the public hearing also suggests that the legislation was intended to clarify what was perceived to be existing law rather than making new law. Accordingly the court is precluded from considering earning capacity in computing the arrearage." Lively v. Barnaby, 18 S.M.D. ___, 2004 Ct.Sup. 14329, 14335 (2004).
The court finds the statements of legislators rather than those of witnesses to be generally more reliable in determining legislative intent. This bill however, was requested legislation, and statements by proponents may provide some insight into the intent. Lucy Potter, an attorney at Greater Hartford Legal Assistance, and also a present member of the Child Support Guidelines Commission testified before the judiciary committee on February 10, 2003 and stated that the act
limits the application of deviation criteria under Connecticut's Child Support Guidelines. In situations where the person for who support is sought, has qualified for disability based welfare benefits, be an SSI recipient, Social Security Disability, SAGA recipient or state sub. This sort of income already doesn't count under the Child Support Guidelines as they already exist. And the Connecticut Supreme Court ruled about a year or two ago that it was not proper to — when somebody had SSI as their only source of income, a magistrate or a judge cannot, on the basis of other equitable factors, or best interest of the child, deviate and find that this person has income that should count, even though they have this non-countable income. But what we've been finding since that decision, there have been many instances in which, particularly support magistrates will impute income to people whose only source of income is SSI and in effect, the burden is then put on the disabled person there in the support determination to prove that he or she has no earning capacity. And it's very difficult because these are destitute people, they're people who are disabled and in many instances, the disability is a mental impairment. So, it's very difficult for them to know where to begin. They won't have the resources to subpoena in the doctors and they often even lack the ability to understand what earning capacity is, which is what the magistrate is claiming. In order for somebody to get SSI or Social Security Disability, it's a very rigorous process. The Social Security Administration collects all the evidence for people and when the evidence is inconclusive, they even go so far as to set up medical evaluations that the Social Security Administration pays for. Most of the people who qualify for SSI would not be able to do that on their own and what we're looking for here — the Family Support Magistrate system doesn't have such a mechanism in place. What we're trying to do with this bill is that if a person appears before a Family Support Magistrate and there's already been a determination that this person is disabled, Social Security has reviewed the evidence and made this conclusion, this bill would say to the magistrates you can't say this person has an earning capacity. You can't deviate from the Child Support Guidelines. This person has no income. This person's medical evaluation has been reviewed by the Social Security Administration and disability determination and that it is not for the courts or the magistrates to look behind that determination. Just one example (inaudible — tape switched sides — some testimony not recorded) exempt for failing to pay a $1,000 child support order that shouldn't have been entered against her because she really was retarded and had no ability to pay. She was released from jail when the family came up with the $1,000 and had been appointed a lawyer who hadn't been able to garner any evidence about her mental retardation. The magistrate said she needed to come up with a doctor's letter saying that she was retarded. Well, she wasn't seeing anybody for this condition. She had always been mentally retarded. There wasn't a doctor around who either felt qualified to make that evaluation. And ultimately the case — a Legal Services lawyer in New Britain had to haul out the old evidence from the Social Security Administration and came up with the information that Social Security had used showing that this woman was retarded and ultimately the order was reduced to zero. But the bill would sort of present that squandering of resources on trying to re-assess something when the Social Security Administration that was in the position to make that determination in the first place has already made that determination.
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 2003 Sess., pp. 505-07.
The public act does not preclude the court from counting any actual income earned by the defendant and assessing arrearages based on such income. Although the defendant worked part-time for significant periods of time from 2001 until Cassandra's birth, his employment extended only a month thereafter. The income disclosure information from MHC Services did not detail his week to week income but provided the total number of hours he worked each month at $7.00 per hour. Neither the State nor the defendant produced the weekly breakdown. However, there was testimony that at no time did he work over 20 hours in a given week. Thus under the child support guidelines his support obligation would be defined by the 10% bracket regardless of how much he earned each week. The employer disclosed that he worked 29 hours in February and 8 hours in March. Thus the maximum he earned after Cassandra was born was $259.00 and under the guidelines the presumptive arrearage is $25.90. The court finds no reason to deviate.
In the absence of a weekly breakdown, and given the burden of proof of the obligor, the court imputes all of the reported February income to the period after Cassandra was born on February 7.
The respondent is ordered to pay $0 current support plus $0 on the arrearage, effective January 16, 2005. The court finds an arrearage of $25.90 to the State of Connecticut as of the same date. Costs are denied. Immediate income withholding is ordered. Each parent is ordered to provide medical and dental insurance for the benefit of the minor children as available through employment, union or group plan. There is no additional ability of the defendant to contribute unreimbursed medical costs or day care expenses.
A state marshal was engaged to serve the paternity petition. However, on the return of service, the state marshal included a charge of $10.00 for "military affidavit." The marshal appended to his return of service a document entitled "Military Affidavit." The affiant bases his conclusion that the defendant is not in the military service on a claim that "his girl friend verified he lives there and is not in military." The signature of the affiant appears to match that of the marshal on the return. The signature attesting to the oath of the affiant appears to be different, but both the seal of the notary and the printed name under the signature are that of the self-same marshal. In other words the marshal took his own oath on the affidavit. Hence the affidavit was invalid. Of more concern is that a military affidavit was unnecessary in this matter. Although a default motion was filed, it was denied on October 14, 2003 because the defendant filed an appearance. Even had the defendant defaulted, the military affidavit, which was dated July 16, 2003 would have been stale and the State would have been required to produce a new one. Thus the "military affidavit" submitted by the marshal was utterly useless. This fact did not stop the marshal from adding $10.00 to his bill. Of even more concern is that there is no statutory authority for a marshal, as part of his duties, to execute a military affidavit, much less to charge a fee for the service. The marshal is not an expert witness, and charging a fee for an affidavit is dangerously akin to charging a fee for testimony. This court has repeatedly chided the Attorney General for allowing marshals retained by that office to charge what appears to be an unlawful fee. The court's remedy is to deny the State recovery of any costs when such an illegal charge is added. However, there is no reason why the taxpayers, or parties to a case wherein such charges slip by unnoticed, should be burdened by this improper tax. Illegal billing by a state marshal is prohibited by General Statutes § 6-38d. A sheriff who unknowingly demands or receives illegal fees for serving process is subject to removal from office. General Statutes § 6.36. A state marshal who "makes a false or illegal return" is liable for double damages to the party aggrieved. General Statutes § 6-32. It is long past time where the Attorney General should discontinue hiring marshals who insist on charging unlawful fees for useless services, or should enforce punitive action against those who insist on doing so. The court also notes that no claim was made for the costs of the DNA tests. These tests were not conducted pursuant to court order and the court presumes that either a statutory basis or factual basis was absent or that the costs of the tests have already been paid. In any event, it appears that based on his present financial status, the defendant does not have an ability to pay costs.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate