Opinion
No. FA 07 4007458
February 13, 2009
MEMORANDUM OF DECISION MOTIONS 116, 118.50 AND 119
I. BACKGROUND
The parties have filed cross-motions to modify and, in the alternative, to terminate or vacate orders previously entered by the court. By way of background, the court finds the following facts to be relevant to these proceedings. At the time of the final judgment in this case, the parties were self-represented and entered into a written agreement concerning the dissolution of their marriage. Based upon the agreement of the parties, the court (Dewey, J.) entered a Judgment of Dissolution on November 26, 2007 which, in part, provided for equally shared legal and physical custody of their minor children, Samantha N. Fera (D.O.B. 12/11/96), and John A. Fera (D.O.B. 2/11/03). The parties further agreed, and by the terms of the Judgment the defendant was ordered, to pay the sum of $1,600 per month, equaling $369/week, to the plaintiff for the support of their two minor children. It is also noteworthy that the parties waived their rights to alimony.
At the time of the dissolution, the presumptive amount of support to be paid by the defendant was $330 per week. The order of support is $39 higher than this figure, making it less than 15% higher than the presumptive amount, pursuant to the Child Support Guidelines. Therefore, the court finds that a deviation from the presumptive amount on this basis was neither required nor ordered by the court. See General Statutes § 46b-86(a). Further, in entering the Judgment on the record, the plaintiff represented to the court that there was no finding that the application of the presumptive amount would be inequitable or inappropriate and there was no deviation made to a lower amount based upon the order of shared custody. This assertion was undisputed by the defendant. The plaintiff furthermore asserts that a deviation at the time of the Judgment would have been unwarranted pursuant to the deviation criteria due to the disparity of income between the parties and the insufficiency of funds available to the plaintiff to meet the basic needs of the minor children. The court agrees and further finds it to be equally true today, based upon the current circumstances of the parties.
General Statutes § 46b-86(a) provides: "Unless and to the extent that the decree precludes modification, the court may order either party to maintain life insurance for the other party or a minor child of the parties or any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite 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. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50." (Emphasis added.)
At the time of the Judgment, the child support order was based upon the following facts. The defendant was working for Rexnord Industries, LLC, earning gross income of $2,158 per week, with a net weekly income of $1,512 per week. Annualized, his gross income at that time was just over $112,000 per year. The plaintiff was working for Middlesex Hospital on a part-time basis during the evening hours, earning a gross income of $330 per week, with a net weekly income of $274. Annualized, her gross income was just over $17,000.
On October 5, 2008, the defendant moved to modify the child support order on the grounds that he had been laid off from his job with Rexnord Industries, LLC on October 3, 2008. Although the motion to modify was originally scheduled for a hearing before the court on November 17, 2008, it was continued for a period of two weeks at the plaintiff's request to seek legal representation. With the assistance of counsel at the rescheduled hearing on December 1, 2008, the plaintiff entered into an agreement with the defendant, who was self-represented, to modify the child support order to $110 per week, which was entered as an order of the court (Calmar, J.) on that day.
This modification was based upon a substantial change in circumstances, as represented by the defendant, that he was receiving $549 per week in Unemployment Compensation Benefits. The modified child support order was also based upon the plaintiff's increased earnings of $458 per week in gross income, resulting in $350 per week in net income. The plaintiff's increase in income was the result of an additional hour of late afternoon employment with Middlesex Hospital, which she now begins an hour earlier at 5:00 p.m. The modified order of support was made retroactive to November 1, 2008 and an arrearage was found in the amount of $1,540. The defendant was ordered to pay the arrearage in the amount of $20 per week, in addition to the weekly order of $110. The current arrearage amount is $1,340, based upon this modified order and payments previously received by the plaintiff.
The defendant's ongoing efforts to secure new employment was the subject of substantial discussions between the parties at the time of the modification, entered by agreement and ordered by the court on December 1, 2008. Based upon these discussions, the parties agreed and the court further ordered the defendant to provide ongoing information on the subject of his efforts to secure new employment. Specifically, the court ordered him to "report his job search efforts to plaintiff through counsel every Friday by 5 p.m. . . . and shall supply a copy of his job offer, contract and proof of his income (paystubs, etc.) within 48 hours of receiving same to plaintiff through counsel."
At the time of the court's order to modify support, the defendant neglected and failed to advise plaintiff, her attorney or the court that on November 21, 2008, he had been offered temporary employment as Program Manager with BLC Consulting Group at an hourly wage of $65 plus benefits. Plaintiff's Exhibit 1. The defendant accepted this offer on November 23, 2008, with the understanding that the offer was subject to a background check and drug test. Plaintiff's Exhibit 2. The scheduled date for this temporary employment to begin, subject to satisfactorily meeting these conditions, was December 2, 2008, the day after the modification of child support was ordered by the court. Plaintiff's Exhibit 1. The court notes that at the time of the conditional offer and acceptance, the defendant testified that he was actively seeking three other full-time positions, which he would have understandably preferred over the temporary offer with BLC Consulting Group. He was also unsure that his background check would be satisfactory to his prospective new employer, as he had recently declared bankruptcy.
Immediately after entering the modified order of support on December 1, 2008, the defendant was formally notified at 1:59 p.m. that he had met the conditions of employment with BLC Consulting Group and was to report for work the following day. He began working at the rate of $65 per hour on December 2, 2008 and thereafter informed the plaintiff of his change in employment status pursuant to the order of the court. Since that time has received gross income of $2,291 per week, netting him a weekly income of $1,780. Notwithstanding his net weekly income of $1,780 since December 7, 2008, defendant has continued to pay only the modified support order of $110 per week, plus $20 per week on an arrearage since December 1, 2008, which sums are based on his unemployment compensation earnings of $549 per week.
At the time of the Judgment, the parties had established a parenting schedule that provided daytime access primarily with the plaintiff, due to her evening employment, and nighttime access primarily with the defendant, with alternating weekends. Although she does not care for her children during school hours during the day, she is the primary caregiver on school vacation and sick days. She also cares for the younger of the two minor children before he goes to school. Therefore, the defendant is the primary caregiver during the evening and overnight hours, as the plaintiff's existing work and parenting schedule allows for only five to six overnights per month.
The court takes judicial notice of the fact that state law requires 180 school days per year, leaving 185 days in the calendar year when school attendance is not required. General Statutes § 10-16 provides as follows: "Each school district shall provide in each school year no less than one hundred and eighty days of actual school sessions for grades kindergarten to twelve, inclusive, nine hundred hours of actual school work for full-day kindergarten and grades one to twelve, inclusive, and four hundred and fifty hours of half-day kindergarten, provided school districts shall not count more than seven hours of actual school work in any school day towards the total required for the school year. If weather conditions result in an early dismissal or a delayed opening of school, a school district which maintains separate morning and afternoon half-day kindergarten sessions may provide either a morning or afternoon half-day kindergarten session on such day."
This parenting schedule has undergone several minor adjustments since the time Judgment entered in this case. First, the younger of the two minor children has moved from part-time preschool to a half-day kindergarten program, reducing the plaintiff's daytime access by approximately one-half hour. Further reducing the plaintiff's daytime access to her children by one hour, she has successfully sought additional hours of employment at Middlesex Hospital, which the court also notes was generally encouraged by the defendant who testified that she should seek additional employment opportunities. As noted previously, she now goes to work at 5:00 p.m. instead of 6:00 p.m.
II. LEGAL CLAIMS
The plaintiff seeks to vacate the order modifying support and a new finding of an arrearage, based upon the defendant's failure to disclose his job offer to the plaintiff on December 1, 2008, which terminated his unemployment compensation the next day. She claims to have been severely prejudiced by this omission by the defendant because she is unable to meet her basic expenses under the modified order of support in that she has been unable to pay her rent. She further asserts that the defendant has benefitted by at least $259 per week less in child support than previously ordered, while, at the same time, earning a higher income than the income upon which those orders were based. Absent an order to vacate the modified order of support, she seeks a new order of support consistent with the child support guidelines, which, by her calculation, amounts to $356 per week. She also seeks an order retroactive to the date of her certification of mailing this motion to the defendant, dated January 13, 2009.
The defendant originally filed a motion to modify custody on January 6, 2008 as a self-represented litigant. In his motion to modify, he moves the court to "[r]ecognize the defendant as the custodial parent as the children reside with him 75% of the time and 25 + nights per mo." See Motion No. 118.50. Now with the assistance of legal counsel, the defendant moves the court to modify or terminate the order of child support, custody and visitation, postjudgment. The motion claims, inter alia, a substantial change in circumstances since the Judgment and that the child support order substantially deviates from the Child Support Guidelines in that the minor children primarily reside with him. Absent an order recognizing the defendant as the custodial parent, the defendant seeks a new order of support consistent with the child support guidelines, which, by his calculation, amounts to $339 per week, with a deviation downward of 25% in recognition of his disproportionate parental responsibilities. The difference between the presumptive amounts of the parties results from the defendant's claim that his new wife has previously filed her income taxes as a married person filing separately and that he therefore plans to file his taxes in the same manner.
III. DISCUSSION A. The Plaintiff's Claim
The essence of the plaintiff's claim is that the order modifying support was obtained by misrepresentation through omission or non-disclosure. Our Supreme Court has addressed the question of fraudulent non-disclosure in the context of dissolution in the case of Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991). In Billington, the defendant failed to disclose the fact that he had received a written offer that was substantially higher than the amount listed on his financial affidavit. The Supreme Court in Billington held that "[f]raud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . . A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud . . . The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." (Citations omitted; internal quotation marks omitted.) Id., 217-18.
In deciding to abandon the element of diligence in the discovery of fraud, the court recited the elements otherwise required for "the granting of relief from a marital judgment secured by fraud: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different." (Internal quotation marks omitted.) Id., 218.
In the present case, the court is concerned only with the third of these elements; namely, that there must be clear proof of the perjury or fraud shown by the party seeking to open the judgment. The court is not satisfied that the plaintiff has met this burden. Although the defendant was not forthcoming about the possibility of his impending employment, he made no false statement of fact and was credibly unsure of his ability to meet the conditions of the employment offer that had been made to him by BLC Consulting Group. The court also makes this finding in the context that the defendant had appropriately sought a modification of his support obligation while he was unemployed. Based upon these findings, the court denies the plaintiff's motion to vacate the order modifying support, entered on December 1, 2008.
B. The Defendant's Claim
The essence of the defendant's claim is that the order of support should be modified in recognition of his role as the custodial parent as defined in the Child Support Guidelines. He claims a substantial change in circumstances for the following reasons: 1) his children have primarily resided with him since the Judgment; 2) the plaintiff now earns more income due to an increase in hours of work, and 3) this change in her hours of work and their son's attendance in kindergarten is generally commensurate with her reduced hours of parenting time. The relief he seeks is for the court to vacate the award of child support.
"General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment . . . Section 46b-86(a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is first either (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines." (Citation omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn.App. 482, 491-92, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).
The court will begin with the first of these two, alternative criteria 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." Id., 492. "The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances." Santoro v. Santoro, 70 Conn.App. 212, 218-19, 797 A.2d 592 (2002). However, "[t]he power of the trial court to modify the existing order does not . . . include the power to retry issues already decided . . . or to allow the parties to use a motion to modify as an appeal." (Citation omitted.) Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).
Based upon the evidence presented in this case, the court finds there to be no substantial change in the circumstance since the Judgment. First, although the hours of parental access have changed due to the increase in hours of work and school, these amount to no more than eight hours per week, which the court finds to be less than substantial in light of the number of hours in a week, whether waking or otherwise. Although the court acknowledges that the defendant has significant parental duties in light of the overnights and meal preparation required by the nature of the schedule, this is essentially the same schedule that was in existence at the time of the Judgment. Moreover, the plaintiff has substantial parental duties on each and every workday, including primary daytime parental responsibilities on vacation and sick days and, for these reasons, the court finds the plaintiff's parental responsibilities to be substantially in excess of a normal visitation schedule, typically consisting of alternating weekends, holidays and other visits of a short duration. Therefore, although the parental responsibilities may not entirely be equal, as recited in the language of the Judgment, the court finds the access schedule to be within the proper definition of a shared physical custody order and that it is essentially the same parental access schedule as it existed at the time of the Judgment. In light of the plaintiff's substantial and primary daytime parental responsibilities, substantially unchanged since the time of the Judgment, the court will not order a modification that would, at its essence, revisit the underlying Judgment in this case.
The court will now consider the defendant's second claim; namely, that the order of support substantially deviates from the guidelines. "Both 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 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, as reflected in the mandatory periodic revisions of the child support guidelines. Mullin v. Mullin, 28 Conn.App. 632, 635, 612 A.2d 796 (1992). In considering this second criteria for modification, the court has previously found the support orders at the time of Judgment to be substantially in compliance with the Child Support Guidelines. Furthermore, the court has denied the defendant's motion to determine him to be the custodial parent. Absent this finding, there is no basis upon which to vacate the order of support. Instead, the substantial change in circumstance found by the court is the significant increase in the defendant's income, providing the basis for granting the plaintiff's alternative motion for an upward modification from the current weekly order of $110.
C. The Plaintiff's Motion to Modify CT Page 3512
General Statutes § 46b-86(a) provides in relevant part that "any final order for the periodic payment of . . . support . . . may . . . be . . . modified . . . 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 . . ." (Emphasis added.) Weinstein v. Weinstein, supra, 104 Conn.App. 495-96. Based upon the current incomes of the parties and the existing support order of $110, an upward modification of support is warranted in this case. In determining the weekly order of support, the court will use the Child Support Guidelines Worksheet provided by the defendant, as it more accurately reflects his current tax status compared with the Worksheet supplied by the plaintiff. Based upon the defendant's anticipated tax status of being married and filing separately, the court finds the presumptive amount of support to be $339 per week. Unreimbursed medical expenses are presumed by the guidelines to be 18.88% paid by the plaintiff and 81.12% by the defendant.The defendant asserts that a deviation from the guidelines is warranted pursuant to deviation criteria. The court notes, however, its previous finding that there was no basis for a deviation at the time of the Judgment, due to the disparity of income between the parties and the sufficiency of funds available to the plaintiff to meet the basic needs of the minor children. The court further finds the disparity equally true today, based upon the current circumstances of the parties. Although the plaintiff now earns gross income of approximately $24,000, the defendant now earns gross income of approximately $119,000. These increases in gross income are approximately $7,000 and are essentially equal compared with their income at the time of Judgment. Upon reviewing the financial affidavits filed with the court on February 9, 2009, the plaintiff's weekly expenses exceed her net weekly income of $350 by an additional $300; while the defendant's net weekly income slightly exceeds his expenses, including the current order of support. The court therefore finds that a deviation from the guidelines would be inequitable or inappropriate based upon the circumstances of the parties as they currently exist. Based upon the disparity of incomes between the parties, and particularly between the plaintiff's net income and expenses, the court finds that the defendant's ability to meet the basic needs of the minor children would be significantly diminished by allowing a downward deviation from the presumptive amount in this case.
One of two printed figures of $350 was modified by hand to $310. It is therefore unclear which figure is accurate.
D. Retroactivity
The plaintiff seeks the retroactive application of the order modifying support in this case. In this case, the plaintiff certified that a mailed copy was sent to the defendant, but did not make service pursuant to General Statutes § 52-50. "General Statutes § 46b-86 requires that in order to modify the periodic payment of permanent alimony and support retroactively to the date a motion seeking modification was served on the opposing party, such service must be made pursuant to § 52-50 by a sheriff, a deputy sheriff, a constable or other proper statutorily authorized officer. Merely mailing a copy to opposing counsel or the opposing party, as was done here, does not, therefore, comply with § 52-50. Shedrick v. Shedrick, 32 Conn.App. 147, 151, 627 A.2d 1387 (1993). The order modifying support shall commence effective February 9, 2009, the day this matter was initially heard by the court. See Vickery v. Vickery, 25 Conn.App. 555, 559, 595 A.2d 905 (1991).
E. Attorneys Fees
The plaintiff seeks attorneys fees in this case pursuant to General Statutes § 46b-62. In support of this motion, she provided the court with an Affidavit of Attorneys Fees in the amount of $3,900 plus cost of $70. "Connecticut follows the general rule of law known as the American rule, under which attorneys fees and ordinary expenses and burdens of litigation are not awarded to successful parties unless there is a contractual or statutory exception." Maris v. McGrath, 58 Conn.App. 183, 188-89, 753 A.2d 390 (2000). Based upon the statutory exception contained in General Statutes § 46b-62, the court will order a portion of the plaintiff's attorneys fees to be paid by the defendant.
General Statutes § 46b-62 provides in relevant part: "In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82 . . ."
Although there is no finding of fraudulent misrepresentation or bad faith in this case, the defendant did not make a full or frank disclosure of his ongoing search for employment and, in particular, he failed to disclose his acceptance of a conditional job offer on the eve of entering into an agreement to modify support to his advantage. Had he fully and frankly disclosed the likelihood of his impending employment, the necessity of the plaintiff's subsequent modification and proceedings in this court might well have been obviated. See Billington v. Billington, supra 220 Conn. 220-21. Based upon the disparity in income between the parties, the court orders the defendant to pay $3,000 of the plaintiff's attorneys fees in this case, plus costs of $70.
"To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the court . . . is the conduct of the party in instigating or maintaining the litigation." Maris v. McGrath, 269 Conn. 834, 845-46, 850 A.2d 133 (2004).
III. CONCLUSION
The plaintiff's motion to modify is granted. All other motions are denied. Child support is ordered to be paid by the defendant in the amount of $339, plus $20 per week on the previously existing and unchanged arrearage of $1,340. Unreimbursed medical expenses are ordered pursuant to the guidelines to be 18.88% paid by the plaintiff and 81.12% by the defendant. The defendant is order to pay $3,000 of the plaintiff's attorneys fees plus cost of $70. The payment of attorneys fees and costs shall be made within 120 days.