Opinion
No. FA 97 0081038
February 23, 2010
MEMORANDUM OF DECISION ON THE DEFENDANT'S POSTJUDGMENT MOTION FOR MODIFICATION
On June 24, 2009, the defendant, Susan Carroll, filed a postjudgment motion for modification of the child support order entered on July 15, 2002. For the reasons discussed below, the court will continue this matter and schedule an evidentiary hearing so that the court can hear witnesses and examine evidence to determine whether there has been either a substantial change in circumstances or a substantial deviation from the child support guidelines sufficient to justify a modification of the support order.
The defendant's name changed from Susan Carroll Busey to Susan Carroll pursuant to the September 25, 1997 judgment of dissolution.
I. FACTS
The plaintiff, Mark Busey, and the defendant were married on May 28, 1988. The marriage produced two children, Annelise Carroll Busey, born October 19, 1989, and Marguerite Carroll Busey, born February 1, 1997. After almost ten years of marriage, the parties filed a complaint and cross-complaint alleging that their marriage had irretrievably broken down, and the court, Higgins, J., dissolved the marriage on September 25, 1997. The judgment of dissolution incorporated a written separation agreement, which the court found fair and equitable, that provided, inter alia, for the maintenance and support of the children.
On March 5, 2002, the defendant moved the court to modify the support order, specifically to request an increase in the amount of support to cover the cost of daycare expenses for the children. The parties agreed to mediate their dispute, and on July 15, 2002, they presented their agreement to the court, Fischer, J., who subsequently approved and entered the agreement, substituting the new support order for the original support order. The new support order provided in relevant part: "The [p]laintiff [f]ather shall continue to provide medical health insurance coverage for the two children. The [d]efendant mother shall be responsible for the first $100 of unreimbursed medical, dental, orthodontic, eyeglass, prescription, and other necessary health expenses incurred by each child. All such expenses above $100 per year per child shall be paid 45 [percent] by the [w]ife and 55 [percent] by the [h]usband." This provision comported with the child support guidelines in effect at that time. On August 1, 2005, an updated version of the child support guidelines went into effect that eliminated the provision requiring the defendant to pay the first $100 of unreimbursed medical expenses.
On June 24, 2009, the defendant filed a motion to modify the support order, supported by a memorandum of law. The court, Calmar, J., granted the plaintiff's motion for continuance, and on August 5, 2009, the plaintiff filed a motion in opposition. The court, Calmar, J., heard argument at the short calendar on August 10, 2009 and ordered the parties to further brief the issues. The defendant and the plaintiff filed their respective memoranda of law on August 13 and 14, 2009. The defendant also filed a third memorandum of law on August 19, 2009, specifically to rebut the arguments the plaintiff made in his memorandum.
II. DISCUSSION
General Statutes § 46b-86 provides in relevant part: "Modification of alimony or support orders and judgments. (a) Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial." General Statutes § 46b-215b(c) provides in relevant part: "In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered . . ." Moreover, "[b]oth the substantial change of circumstances and the substantial deviation from child support guidelines provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole . . ." (Internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn.App. 170, 174, 829 A.2d 885 (2003).
General Statutes § 46b-215a provides in relevant part: "The Commission for Child Support Guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards . . ."
In short, the court conducts a two-part test: First, the court determines whether there has been a substantial change in the parties' financial circumstances; and second, the court determines whether the support order substantially deviates from the child support guidelines. If the moving party satisfies at least one part of the test, the court may modify the support order.
The defendant argues that the court should modify the current support order because it substantially deviates from the child support guidelines. Specifically, the defendant argues that the court should strike the provision in the support order requiring her to pay the first $100 of unreimbursed medical expenses because it is inequitable and fails to comport with the updated child support guidelines. The plaintiff counters that the defendant has failed to show that there has been a substantial change in either parties' circumstances or a substantial deviation from the child support guidelines. Therefore, the plaintiff urges court to overrule the defendant's motion.
A. Substantial Change in Circumstances
First, the court must determine whether there has been a substantial change in the parties' financial circumstances. "As to the `substantial change of circumstances' provision of § 46b-86(a), [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification . . . A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper . . . [O]nce the trial court finds a substantial change in circumstances, it can properly consider a motion for modification . . . After the evidence introduced in support of the substantial change in circumstances establishes the threshold predicate for the trial court's ability to entertain a motion for modification, [that evidence] comes into play in the trial court's structuring of the modification orders." (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn.App. 482, 492-93, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). Furthermore, "[u]nder [§ 46b-86(a)], the party seeking the modification bears the burden of demonstrating that such a change has occurred . . ." (Internal quotation marks omitted.) Simms v. Simms, CT Page 5743 283 Conn. 494, 502, 927 A.2d 894 (2007).
Both in his memorandum of law and at the short calendar hearing, the plaintiff proffered that there has been no substantial change in the financial circumstances of either party. The defendant never directly addressed this issue. Neither party presented any evidence on this issue at the short calendar hearing.
B. Substantial Deviation From the Child Support Guidelines
Second, the court must determine whether the current support order substantially deviates from the child support guidelines. "The purpose of the guidelines is to ensure that a parent responsible for child support does not pay less than the amounts dictated by the guidelines." Amodio v. Amodio, 56 Conn.App. 459, 467, 743 A.2d 1135, cert. granted, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). "The guidelines [require] the trial court first [to] determine on the record the amount of support indicated by the guidelines schedule before determining whether to deviate from that amount." (Internal quotation marks omitted.) Brent v. Lebowitz, 67 Conn.App. 527, 531, 787 A.2d 621, cert. granted, 260 Conn. 902, 793 A.2d 1087 (2002) (appeal withdrawn April 25, 2002). Furthermore, "[§ 46b-215b] does not . . . require the trial courts to apply the [g]uidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the [g]uidelines." (Emphasis in original.) Battersby v. Battersby, 218 Conn. 467, 469-70, 590 A.2d 427 (1991). Nevertheless, § 46b-215b(a) provides that "[a] specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case." Thus, "[t]o enter child support orders that deviate from the presumptive support amount, the court must make specific findings on the record to explain its reasons for doing so." Lusa v. Grunberg, 101 Conn.App. 739, 741, 923 A.2d 795 (2007).
The defendant argues that the because the updated child support guidelines eliminated the provision requiring her to pay the first $100 of unreimbursed medical expenses, the existing support order substantially deviates from the updated guidelines. Additionally, the defendant argues that under the existing support order she is paying 62.5 percent of the unreimbursed medical expenses, which is well above the fifteen percent deviation provided for in § 46b-86. Therefore, the defendant argues, the court should modify the support order pursuant to § 46b-86. The plaintiff counters that the child support guidelines are inapplicable because, according to the plaintiff, Fischer, J., did not consider the guidelines when he entered the new support order. Furthermore, the plaintiff argues that the authorities cited by the defendant apply to child support, not unreimbursed medical expenses. Finally, the plaintiff argues that the support order does not substantially deviate from the updated child support guidelines.
A review of the record shows that the parties utilized the child support guidelines to craft the current support order. Specifically, both parties completed the worksheets used in conjunction with the child support guidelines to determine the support amount. Furthermore, in substituting the new support order for the old support order, Fischer, J, made no findings on the record indicating that the new support order deviated from the guidelines. Thus, it is reasonable to infer that Judge Fischer did consider the child support guidelines when he entered the new support order.
Pursuant to §§ 46b-86 and 46b-215b(c), the court must consider the child support guidelines in any proceeding to modify a child support order. This court must decide, however, which version of the guidelines to apply. As noted previously, the court's authority to modify child support orders based on a substantial deviation from the child support guidelines allows the court to modify child support orders in the light of changed social or economic circumstances in society. Furthermore, § 46b-215a directs the Commission for Child Support Guidelines to establish guidelines to ensure the appropriateness of child support awards, and that these guidelines are to be updated every four years. It follows that the updated guidelines reflect the current social and economic circumstances in society, and the court will, therefore, apply the current version of the guidelines to the present case.
III. CONCLUSION
As neither party introduced any evidence on this or the prior issue at the short calendar hearing, due process requires that the court conduct an evidentiary hearing so that the parties can present evidence and cross-examine witnesses. Gil v. Gil, 94 Conn.App. 306, 316, 892 A.2d 318 (2006); See also Bartley v. Bartley, 27 Conn.App. 195, 196-98, 604 A.2d 1343 (1992) (deciding motion to modify child support without hearing was plain error). Therefore, the court will schedule an evidentiary hearing so that the defendant can produce evidence, if she has any, showing that there has been a substantial change in the parties' financial circumstances justifying a modification of the support order and/or whether the current support order substantially deviates from the current version of the child support guidelines.