Opinion
No. FA95-0125156
October 27, 2006
CORRECTED MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT #109 DOCKET #FA95-0125156
The sole issue in this contempt matter is whether an accumulated arrearage of child support pursuant to a final Judgment in a Support Petition proceeding survived a subsequent dissolution action where the arrearages were neither claimed nor found, for purposes of enforcement filed in the support petition file.
Background:
This Order addresses the legal issues presented as a result of the filing of two contempt motions initiated by the State of Connecticut through the Office of Support Enforcement. The first contempt citation was filed as post-dissolution contempt (Docket #FA01-0165543). The motion sought a finding of contempt for the father's alleged failure to pay court-ordered child support in the amount of $56,441.04. (Contempt Citation, entry #125, Docket #FA01-0165543.) The claimed arrearages represented post-dissolution, and pre-dissolution unpaid child support pursuant to a court order entered on a separate support petition file (Docket #FA95-0125156), and continually charged after the dissolution. The orders forming the basis of the alleged contempt were rendered years prior to the parties' dissolution judgment. This Court dismissed the contempt proceeding pursuant to Practice Book § 25-27, finding inter alia, that the post-dissolution contempt citation sought relief pursuant to the support petition orders, which had been superseded by the subsequent divorce proceeding. (See Order dated 12/19/05; see also Order dated 3/17/06, for additional factual and procedural background, incorporated by reference.) A second contempt proceeding was subsequently filed in the support petition file. This second contempt motion seeks a finding of contempt on the orders entered prior to the entry of dissolution, pursuant to the support petition judgment. It is claimed that the father owes to the mother and the state in excess of $40,000 for unpaid support accruing prior to the dissolution.
It is noted that arrearages were not claimed in the divorce action by the mother or the State. As a result, no arrearages were found. The State appeared in the dissolution action to assert its interest because medical benefits were being provided to the family by the State. The State requested, and was granted $1 per year alimony to protect its interest.
It is undisputed that the father has not paid, in full, his court-ordered support pursuant to the dissolution judgment. However, it appears that no contempt proceeding for his failure to pay the court-ordered support is pending in the dissolution action. The present contempt at issue seeks a contempt finding on the earlier support judgment, for unpaid support accruing prior to the dissolution judgment. (The father has filed a motion to modify the child support obligation in the dissolution file. This together with a contested custody dispute are pending before the Superior Court.)
The State submitted 6 pages of documents, entitled "General testimony, Page 6a." Each sheet is identified as "page 6a of 10," and dated 4/13/06. Some sheets are signed by a Support Enforcement Officer, none are sworn to or affirmed. No testimony was provided to support the documentation and such were not introduced as Exhibits. The sheets identify the charges to the "Petitioner prior to divorce" from 1998-6/02 in the total amount of $22,545; to the State of Connecticut, from 1995-2001, in the total amount of $21,601, and to the petitioner, after the divorce, from 2002-4/06, in the total amount of $18,943.18.
Legal Standard:
No Connecticut case law was found directly addressing the issue presented. However, General Statutes § 46b-231(q) appears dispositive of the issue. This section provides, in relevant part:
When an order for child support or spousal support has been entered against an obligor by the Superior Court in an action originating in the Superior Court, such order shall supersede any previous order for child or spousal support against such obligor entered by a family support magistrate and shall also supersede any previous agreement for support executed by such obligor and filed with the family Support Magistrate Division. (Emphasis added.)
The Connecticut Appellate Court has interpreted this statute rather simply, finding that a superior court order entered after a family support magistrate order is the prevailing order, without need to open or modify the final judgment and order of the family support magistrate. See Santoro v. Santoro, CT Page 19895 70 Conn.App. 212, 797 A.2d 592 (2002). In Santoro the trial court entered an order that differed from a prior family support magistrate order. The Appellate Court, in a footnote, indicated that there was no need to open the family magistrate order because the provisions of Gen. Stat. § 46b-231(q) granted the superior court jurisdiction to modify the magistrate order, without any additional action. Thus, the trial court's entry of an order different than the magistrate's order superseded the magistrate order by operation of Gen. Stat. § 46b-231(q).
The authority of the Superior Court to enter orders superseding a magistrate's orders, by operation of Gen. Stat. § 46b-231(q), is currently pending before the Supreme Court in Pritchard v. Pritchard, 277 Conn. 913, 895 A.2d 790 (2006). In Pritchard, the Superior Court vacated the orders of a family support magistrate while the magistrate proceeding was pending. The Superior Court entered orders that specifically superseded the magistrate's orders. Pritchard v. Pritchard, 204 Ct.Sup. 12380 (Aug. 24, 2004, Shay, J.). The State of Connecticut appealed the entry of orders that vacated and superseded the magistrate's orders. Pritchard v. Pritchard, 92 Conn.App. 327, 885 A.2d 207 (2005). In its appeal, the State challenged the Superior Court's authority to "intercede" in the matter that was pending before the family support magistrate. Id., 334. The Appellate Court specifically declined to address the State's claim, holding, rather, that the State's appeal was moot. Id., 339. The Appellate Court did, however, find that pursuant to Gen Stat. § 46b-231(q) the Superior Court had jurisdiction in the magistrate proceeding and that magistrate court was not a court of exclusive jurisdiction. Id., 335. Further, the Appellate Court found that the Superior Court was required to review the magistrate proceedings and orders to properly address the issue presented. Id., 337.
The Connecticut Supreme Court upon the petition filed by the State of Connecticut, Support Enforcement Services, has certified for appeal the question "Did the Appellate Court properly dismiss the state's appeal?" Pritchard v. Pritchard, 277 Conn. 913, 895 A.2d 790 (2006).
When applying Gen. Stat. § 46b-231(q) to the present support file, it appears plain and unambiguous that the divorce judgment and its orders therein superseded the support petition orders. However, because what appears to be plain and unambiguous to this court is "at issue," an analysis of the application of Gen. Stat. § 46b-231(q) proceeds.
The order obligating the respondent father to pay child support for his four minor children, issue of marriage, entered in the dissolution file were: (1) orders for child support; (2) entered against an obligor by the Superior Court, and (3) were rendered in an action originating in the Superior Court. Continuing with this analysis, the support petition contained a previous order for child support (then for three children issue of the marriage).
Subsequent to the entry of the support orders in the support petition proceeding, the parties lived together. The parties dispute the length of time that they lived together as an intact family. In addition, the mother disputes the extent of the respondent father's financial contribution he made when they lived together as an intact family. It is undisputed that the parties had an additional child, issue of marriage during this interim period.
In the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language. Gen. Stat. § 1-1(a). Connecticut Courts have consistently held that the use of the term "shall" by the Legislature connotes that the performance of the statutory requirements are mandatory versus permissive. Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986); Robinson v. Robinson, 86 Conn.App. 719, 725, 862 A.2d 326 (2004). If the meaning of the text of a statute is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute is not considered. Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405, 891 A.2d 959 (2006). If a statute is not plain or is ambiguous, interpretive guidance is sought from the legislative history and the circumstances surrounding its enactment, to the legislative policy it was designed to implement and to its relationship to existing legislation and common-law principles governing the same general subject matter. Id.
The text of Conn. Gen. Stat. § 46b-231(q) is not ambiguous and clearly mandates that a support order entered by a family support magistrate is superseded by a subsequent order of the Superior Court. Therefore, in the pending action, the orders of support entered by the family magistrate became inoperative upon the rendition of the dissolution decree. To find otherwise would create an absurd and unworkable result.
The parties are in agreement that the weekly current child support obligation entered in the dissolution judgment superseded the prior order of weekly child support. Notwithstanding, the State and the Petitioner mother claim that the arrearages accumulated there under and the weekly arrearage order issued by the family support magistrate survived the dissolution judgment, and continue unaffected by the subsequent dissolution judgment.
If such a misguided application of Conn. Gen. Stat. § 46b-231(q) was applied, dissolution courts conceivably would routinely and unknowingly, be rendering support obligations contrary to the child support guidelines. For example, if the prior arrearage orders continued in the present case, the support petition arrearage order would not be in compliance with the guidelines found by the dissolution court: 20% of the found current support obligation of $162 per week would be $32 on the arrearage payment plan, not $27 as provided in the support petition. Further, if the support arrearages continued in addition to an arrearage payment plan ordered by the dissolution court, an obligor would conceivably be obligated to pay 40% of a current order of support on arrearages, 20% ordered by each separate judicial authority. Therefore, a continuation of an arrearage payment in a support petition would most commonly run contrary to a dissolution court's findings that its orders were consistent with the presumptive Child Support Guidelines. Such interpretation of Conn. Gen. Stat. § 46b-231(q) would create absurd results.
Additionally, allowing a separate enforcement proceeding on a pre-dissolution arrearage and separate proceeding for post-dissolution proceedings would be contrary to the principles of judicial economy. This would expose the parties to potentially inconsistent judicial determinations and piecemeal litigation of what essentially should be one action. This interpretation of Conn. Gen. Stat. § 46b-231(q) would also serve to encourage forum shopping for the enforcement of support obligations.
This Court finds that it does not have the authority to find the respondent in contempt or determine arrearages in the support petition subsequent to the entry of the dissolution judgment. Although this judicial authority believes that the statutory mandate of Conn. Gen. Stat. § 46b-231(q) clearly requires this finding, further discussion of relevant law is provided to corroborate the simplicity and mandatory nature of the statute in context with case law interpreting the inability to enforce pendente lite financial orders subsequent to the entry of dissolution. See Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974); Saunders v. Saunders, 140 Conn. 140, 98 A.2d 815 (1953); Papa v. Papa, 55 Conn.App. 47, 737 A.2d 953 (1999); Elliott v. Elliott, 14 Conn.App. 541, 737 A.2d 953 (1988).
In Tobey and in Saunders, the Connecticut Supreme Court held in each case that the trial court could not make a finding of contempt for the failure to comply with a pendente lite order once the trial court rendered a final dissolution decree. The Supreme Court reasoned that pendent lite orders were interlocutory and thus, became inoperative upon the rendition of a final judgment. "Where a final decree of divorce has been rendered, any orders regarding pendente lite alimony were merged in the final decree and thereafter, no independent action for contempt based upon the temporary alimony order can be properly brought." Tobey v. Tobey, supra, 165 Conn. 745.
In Elliott and Papa, the Connecticut Appellate Court further elaborated on the effect of a final dissolution judgment on a pendente lite order. In Papa, the Court explained that the unpaid pendent lite orders are debts that did not expire upon rendition of the dissolution decree. Papa v. Papa, supra, 55 Conn.App. 53-55. ("Like unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away." Id.) The Appellate Court reasoned that to allow such "forgiveness" of the vested right, would encourage the delay in compliance with a pendente lite order until the dissolution, hoping that the pendente lite order would be forgiven or changed at the time of dissolution. Elliott v. Elliott, supra, 14 Conn.App. 545. The Elliott Court cited the language of Tobey, holding that "[r]eview may be made, however, of that part of a final order which fails to cite a defendant for contempt or which fails to incorporate an accumulate arrearage of pendente lite alimony in the dissolution decree." Id., 546 The Elliott Court found that "it would be error for a trial court . . . to fail to incorporate an accumulated arrearage pendente lite alimony in a final order granting dissolution." Elliott v. Elliott, supra, 14 Conn.App. 545-46; Tobey v. Tobey, supra, 165 Conn. 745-46.
In the proceedings at issue, the support petition orders are analogous to a pendete lite order. The Attorney General filed an appearance and notice of the State's interest in the dissolution proceeding. (Notice, dated May 7, 2002, docket #FA01-0165543.) The Statement of Interest provides that the "parties are receiving state medical benefits" and that the "state requests $1/per year alimony." The State did not claim or disclose to the dissolution court that it claimed an arrearage over $21,000 and a weekly payment thereon. Similarly, the petitioner mother, who was represented by counsel, did not claim or notice the dissolution court that she was owed an arrearage also in excess of $22,000. She did not list any arrearage on her financial affidavit. Thus, the dissolution judgment was rendered without any finding regarding the existing arrearage. The Connecticut Practice Book requires that each party in a dissolution action file a sworn financial statement. Practice Book § 25-30. The sworn statement must include a statement of current income, expenses, assets and liabilities. A court is entitled to rely upon the truth and accuracy of a sworn statement required under Practice Book § 25-30. A "misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding." Billington v. Billington, 220 Conn. 212, 219-20, 595 A.2d 1377 (1991); Sabrowski v. Sabrowski, 95 Conn.App. 625, 629-30, 897 A.2d 700 (2006). If the omission was intentional, it would be reasonable for the dissolution court to surmise that the debt had been satisfied or was no longer due.
The State's appearance, through the Attorney General, is mandated by Conn. Gen. Stat. § 46b-55, providing, in relevant part, "the Attorney General shall be and remain a party to any action for dissolution of marriage . . . and to any such proceedings after judgment in such action, if any party to the action or any child of any party, is receiving or has received aid or care from the State."
The dissolution court did not make a finding of arrearage because neither the State nor the Petitioner mother requested the court to do so. Neither party disclosed any claimed arrearage. Because the dissolution court did not expressly forgive any arrearage, if it existed pursuant to the support petition order, but rather, no claim was made for the arrearage, it is appropriate that any such claim be made to the Superior Court, not the magistrate court. In Evans v. Taylor, 67 Conn.App. 108, 118, 786 A.2d 525 (2001), the Connecticut Appellate court found that the inadvertent failure to find pendente lite arrearage stripped the party of a vested property right and constituted an impermissible retroactive modification of a pendente lite order pursuant to Gen Stat. § 46b-86. Here, if there was an inadvertent failure to claim the arrearage, the claim should be made to the dissolution court.
Four years post-dissolution, the State and the Petitioner mother ask the family support magistrate to find the respondent in contempt for his failure to pay child support pursuant his support obligation found in the support petition file that has now been superseded by the dissolution judgment. If this was the appropriate forum to make such a request, which it is not for the reasons set forth above, this Court is not in a position to make the requested findings. The parties lived together for a period of time subsequent to the entry of the support orders. They had another child together. The dissolution court was in the best position to credit the testimony and evidence as to amounts of support contributed by the father and the amounts claimed due and owing pursuant to the support petition. "The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Gervais v. Gervais, 91 Conn.App. 840, 844; 882 A.2d 731, cert. denied, 276 Conn. 919; 888 A.2d 88 (2005). Any finding by the magistrate court, post-dissolution, would only serve to disturb the Superior Court's carefully crafted financial orders rendered in the dissolution judgment.
Based upon the forgoing, this Court finds that since the debt claimed in this case was not included in the final judgment of dissolution, the motion for contempt is denied. See also Horton v. Horton, 2004 Ct.Sup. 17080, 38 CLR 298, J.D. of New Haven at Meriden, Docket #CV03-0284784-2 (11/19/04, Taylor, J.) ( 38 Conn. L. Rptr. 298).