Opinion
FSTFA164029985S
02-22-2018
Elyssa Frederico v. Sean J. Sullivan
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sommer, Mary E., J.
MEMORANDUM OF DECISION
SOMMER, J.
I. INTRODUCTION AND FACTUAL FINDINGS
The plaintiff, Elyssa Frederico, initiated this action for custody, child support and educational support and educational support orders on July 14, 2016 pertaining to the parties’ minor child Sean R. Sullivan (Riley) born in October 2009.
By way of background, plaintiff (now age 49) and defendant (now age 54) met eleven years ago while both were living and working in New York City. The defendant earned over 1 million dollars a year with an annual bonus that was also about 1 million and the plaintiff earned about $55,000 a year plus a bonus of up to $20,000 providing software helpdesk services for Thompson Reuters. The parties never married. When plaintiff became pregnant, the couple agreed that she would leave her employment to care for their child and that he would support them. They moved to New Canaan about one year after Riley’s birth to a home previously owned by defendant. Throughout the next eight years the defendant provided housing and financial support for the plaintiff and their son to live a comfortable lifestyle in New Canaan, CT. In addition to mortgage, taxes, insurance and household expenses, he paid credit card charges incurred by the plaintiff, provided a car and gave her additional cash. However, the romantic and sexual relationship between the parties ended in 2014. Despite this end to the parties’ relationship, they continued to reside together for about two years.
Eventually, their relationship reached the point where they could no longer live together. The plaintiff no longer had access to financial support through regular cash payments and credit card charges privileges provided by the defendant or the car which defendant made available for her to use for herself and Riley. Whenever the defendant became angry or upset he withheld funds for the plaintiff and Riley. At one point, the defendant demanded that the plaintiff vacate the couple’s home on Mariomi Road but leave the child with him. Without family in the area or a job to support herself and Riley, the plaintiff’s options to care for herself and Riley without defendant’s assistance are extremely limited.
As of June 2015, the defendant told the plaintiff her " stipend" was over, she had two months to get a job and could only remain in the house as a rent paying roommate, texting her that " as a roommate" she had " to pay half the bills ... that’s $2,000 a month." The parties’ relationship continued to deteriorate, including at least one incident on June 28, 2015 which was initially about a child rearing issue but which escalated to police involvement. In November 2016, the plaintiff moved out of the residence on Mariomi Road which is owned solely by the defendant. On November 22, 2016, the defendant filed a motion for custody and parenting plan pendent lite (#111.00). On December 20, 2016, the parties entered into an agreement that was made an order of the court for a parenting plan. (#113.00). Prior to the hearing on October 17, 2017 and October 18, 2017 at which both parties testified along with other witnesses, the parties stipulated to custody and a parental access agreement. This written stipulation of the parties was entered as orders of this court and is incorporated into the judgment entered in these proceedings. The stipulation provides that the parties shall share joint legal custody of the minor child, Riley and the plaintiff shall have physical custody. The subject of the hearing was to determine child support orders for the minor child. The parties filed post-hearing memoranda and child support guidelines on November 13, 2017.
Based on the credible evidence the court finds the following facts relevant to the matter before it. The defendant was the sole source of support for the plaintiff and their child from the time of the child’s birth until recently when the plaintiff became employed. The defendant provided housing, and paid all expenses related to the housing and the needs of the plaintiff and child, including food, transportation, medical care, clothing and personal items through a combination of direct payment, credit card access and a cash allowance to plaintiff. From the time the defendant was served with the subject custody petition, he stopped providing funds for the plaintiff and Riley which are estimated to be about $4,000 per month. He also withdrew use of the car which he had provided to the plaintiff and which was her only form of transporting Riley as well as her own transportation to and from work. The defendant also unilaterally decided to pay $2,000 per month child support. This is substantially less than the $4,000 he had been providing each month. He is credited with the $1,000 twice monthly payments that he made from November 14, 2016 through May 1, 2017 totaling $12,000 and $13,000 for payments through November 2017, for a $25,000 credit against any sums that are ordered retroactively to the date of filing this custody and support petition on July 14, 2016. The additional modest payments that were deposited by the defendant into the parties’ joint checking account (from " Riley Holdings" ) such as the community swimming pool pass are not included as credits to the defendant. In November 2016 the plaintiff moved to a multifamily rental home in New Canaan with a $3,600 monthly rent.
The plaintiff seeks child support in the amount of $1,200 per week. The defendant objects and has provided several alternative calculations based on arguments about his alleged income under the State of Connecticut child support guidelines. The defendant receives $9,231.00 weekly gross based upon 1099 earnings of $40,000 a month. His financial affidavit submitted at the time of the hearing dated October 16, 2017 (Section I. Page 1, Income) claims that actual business expenses reduce his taxable income from $40,000 per month to $30,750 from which he further deducts applicable taxes, social security, Medicare and health insurance to reach what he claims to be his net income for purposes of child support. His child support proposals range from a minimum of $414.00 per week to a maximum of $539.00 per week. Based on the defendant’s financial affidavit his gross weekly earnings are $9,231.00. He claims that his income for child support purposes should be reduced by deducting business expenses of $2,134.00-$2,769.00 which he maintains are reasonable and necessary to his business. The court has conducted a detailed review of the records which the defendant has submitted in support of his claim that his weekly earnings of $9,230 should be reduced by $2,769 for reasonable and necessary business expenses of his consulting business. These so called business expenses include frequent restaurant meals with charges in excess of $150.00 per entry, hotel, entertainment, leisure activities, travel miscellaneous other alleged business expenses and large cash ATM withdrawals. While such expenses arguably may be accepted by tax authorities to reduce a parties’ income tax liability under income tax laws, and are included as " allowable deductions" under the child support guideline definitions, the court is not bound by a parent’s voluntary reduction of his income. Any such business expense claim must satisfy the court as to its reasonableness and necessary relationship to defendant’s business needs.
The court does not find as credible the defendant’s claim that he must spend an average of $2,769.00 as reasonable and necessary business expenses in order to earn the $9,231.00 weekly which he shows as his income from Liquidity Book, LLC. He has not provided any rational or credible explanation for his alleged requirements to expend thirty per cent of his gross earnings on dining, entertainment, travel and other items which the claims are reasonable or necessary to support his work as an independent contractor. He has also not provided any appellate authority applicable to his arguments that the subject charges are reasonable and necessary expenses.
The defendant presented an alternate child support calculation derived from weekly income of $7,096.00 compared to $6,462.00. This calculation is based on reduction of his income not by his alleged business expenses but only the $2,134.00 tax deductible amount as reflected on Schedule C of his tax return. For the reasons stated below, the court finds this calculation to be the more credible and appropriate to the circumstances before the court.
Defendant argues that the plaintiff failed to produce expert testimony that his business expenses were not reasonable or necessary. Defendant is wrong for two reasons. First, there is no basis for the defendant to shift the burden of proof regarding his income to the plaintiff. Second, if expert testimony was required, it would be the defendant, not the plaintiff who would be obligated to present it. In addition, the fact that the court heard detailed, extensive examples of the defendant’s claims does not warrant the conclusion that these claims were credible proof of reasonable and necessary business expenses. In fact, the court having carefully considered the evidence submitted by the defendant, rejects his claim that his proffered business expenses were either reasonable or necessary. Simply submitting credit card statements falls far short of the required level of proof of such expenses required to reduce a party’s income for purpose of establishing child support.
At the time of the hearing, the plaintiff’s weekly income was $1,000.00 as a part-time interior design assistant for Maiden Lane Group. She was also preparing to become a licensed realtor. Plaintiff, who had worked at the helpdesk in the software industry prior to leaving her employment to become a full-time mom to Riley in 2009, does not have the ability to earn anywhere near the level of income that the defendant can earn. However, she has attempted to establish a career that will give her flexibility to continue to raise the parties’ son.
II. APPLICABLE LAW AND ANALYSIS
A. Presumptive Amount of Child Support
In setting an order of child support, the court must follow Connecticut’s Child Support Guidelines, first, by finding, via the guidelines worksheet, the presumptive weekly child support payment based upon a finding of the net income of each of the parties and then applying allowable deduction and the guideline Schedule of Basic Child Support Obligations. This presumptive amount of child support is based upon a finding of the net income of each of the parties and then applying allowable deductions and the guideline Schedule of Basic Child Support Obligation. Based on the above factual findings, the court concludes that presumptive child support in this case is $539.00 per week.
Once the court has calculated the presumptive amount of child support, it is then proper to determine whether any of the deviation criteria provided in the guidelines would apply to the facts and circumstances presented. The deviation criteria provided in Conn. Regs. Section 46b-215a-3 are applied in cases where the presumptive amount, once calculated, would be inequitable and inappropriate. Only after performing those mandated functions may the court then determine the appropriate child support order.
The presumptive amount of child support to be found and awarded in the instant case is subject to further analysis in light of the Supreme Court’s decision in Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010) because the combined net parental income of the parties exceeds the highest step on the Connecticut Child Support Guidelines Schedule of Basic Child Support Obligations, Regs., Conn. State Agencies Section 46b-215-2b(f). The post-Maturo Connecticut Supreme Court case of Dowling v. Szymczak, 309 Conn. 390 (2013) is relevant to this court’s determination of this case because, like Dowling, it involved unmarried parents of a minor child where the parties’ combined net income exceeded $4,000 a week. The Dowling case came to the Connecticut Supreme Court as a result of an appeal from the trial court’s decision to uphold the child support order of a Family Support Magistrate. The factual findings in that case and the specific Maturo calculations that have been adopted by the judges of the Superior Court are the subject of extensive analysis in the Dowling trial court decision. The current Child Support Guidelines apply the presumptive guidelines " ceiling" of 12.04 percent to the combined net income of the parties. Dowling v. Szymczak, 2011 WL 2480924 (2011) concluded that the court " is not required to use a figure less than the presumptive ceiling of [then applicable] 11.83 percent."
B. Whether the Deviation Criteria are Applicable to This Case
Once the presumptive amount of child support is calculated, plaintiff claims that this court should deviate from a presumptive child support award and exercise its discretion to set the award in light of the particular circumstances of this case, taking into the account the needs of the child and appropriate deviation criteria; including, but not limited to, defendant’s actual income, his remaining resources after payment of support, the best interests of the child to remain in New Canaan where he has lived since birth, and the extraordinary disparity in parental income. This court is asked to find that a child support ordered based on defendant’s 1099 income of $40,000 a month and the extraordinary disparity between his income and that of the plaintiff [Subsection (b)(6)(B) ], calls for a child support order that is significantly greater than the presumptive amount is in the children’s best interest.
General Statutes § 46b-84(d) requires parents of a minor child to maintain the child according to their respective abilities. § 46b-84(d) states, " In determining ... the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents and similar criteria as related to the child." These principles apply where the parties’ combined net weekly income exceeds the upper limit of the guidelines schedule. Fox v. Fox, 152 Conn.App. 611 (Conn.App.Ct. 2014) summarized the application of the guidelines in high income cases such as this:
Our Supreme court in Dowling v. Szymczak, 309 Conn. 390, 400-02, 72 A.3d 1 (2013), provides clear, definitive, and recent guidance for determining child support obligations in high asset, high income familial situations: " In a trilogy of recent cases, this court has already discussed the guidelines and accompanying schedule in detail. See Maturo v. Maturo, supra, 296 Conn. 80; Misthopoulos v. Misthopoulos, [ 297 Conn. 358, 999 A.2d 721 (2010)]; Tuckman v. Tuckman, 308 Conn. 194, 61 A.3d 449 (2013). Accordingly, we will not till this legal landscape any more than is necessary for the resolution of the present case ... [T]he schedule [in the guidelines] set forth a presumptive percentage and resultant amount corresponding to specific levels [*623] of combined net weekly income; the schedule begins at $50 and continues in progressively higher $10 increments, terminating at $4,000 ... This court has recognized that the guidelines nonetheless apply to combined net weekly income in excess of that maximum amount ... Indeed, the regulations direct that, [w]hen the parents’ combined net weekly income exceeds $4,000, child support awards shall be determined on a case-by-case basis, and the current support prescribed at the $4,000 net weekly income shall [***21] be the minimum presumptive amount ...
While the regulations clearly demarcate the presumptive minimum amount of the award in high income cases, they do not address the maximum permissible amount that may be assigned under a proper exercise of the court’s discretion ... [T]his court has remained mindful that the guidelines ... indicate that such awards should follow the principle expressly acknowledged in the preamble [to the guidelines] and reflected in the schedule that the child [**1215] support obligation as a percentage of the combined net weekly income should decline as the income level rises ... We therefore have determined that child support payments ... should presumptively not exceed the [maximum] percent [set forth in the schedule] when the combined net weekly income of the family exceeds $4,000, (11.83%) and, in most cases, should reflect less than that amount ...
The presumption as to the maximum percentage set forth in the schedule is a rebuttable presumption and determined on a case by case basis by the trial court based on its review of all relevant factors. Fox v. Fox, supra . Thus, it is clear that trial courts remain free to exercise their discretion in determining the appropriate child support in light of the particular circumstances of each case. Maturo v. Maturo, 296 Conn. 80, 108, 995 A.2d 1 (2010). Of the several approaches for courts to use in determining child support, Connecticut has adopted guidelines based on the " Income Shares Model" which presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together. Maturo v. Maturo, supra, 93 (quoting guidelines). It has been recognized that " the guidelines are income driven, rather than expense driven. At each income level, the guidelines allocate a certain percentage of parental income to child support. Higher incomes generally connote higher standards of living. The aim of the Income Shares Model is as nearly as possible to enable the child to enjoy a standard of living not diminished by the choice of the parents to live separately. See Child Support and Arrearage Guidelines, preamble § (d) " Basic principle." Based on the principles upon which the guidelines have been developed, and applied in this state the presumptive support where the total net income exceeds $4,000 is a number on a spectrum ranging from a presumed minimum of $473.00 to a presumed maximum of 12.04% of the combined net income. This is consistent with the detailed analysis of the court in Dowling v. Szymczak, 2011 WL 2480924. The court also agrees with the Dowling court that the trial court possesses the discretion to determine that number on a case by case examination of the facts listed in Conn. Gen. Stat. § 46b-84(d).
As a result of leaving the workforce and being totally financially dependent on the father of her child to whom she is not married forever eight years, the plaintiff has no spousal rights to claim a share of the defendant’s assets. She has no savings or investments and does not even own an automobile. She has made her best efforts to re-enter the job force, but earns about the same amount as she did when she left the active workforce over eight years ago. The last job that she held before Riley’s birth was essentially administrative. She gave up any opportunity for growth or even a meaningful work record when she stopped working to care for the parties’ son. In contrast, the defendant’s professional career and earnings history has shown a continued income and growth at a substantial level. Even though he is not currently earning income at the peak level he enjoyed in the past, his income well exceeds the maximum level set forth in the state child support guidelines. Child support is based on the parents’ net income.
The court rejects the defendant’s arguments regarding his alleged business expenses as irrelevant and inapplicable to determination of the appropriate level of child support in this case. While the defendant argues that there should not be a different child support standard for New Canaan, the court cannot ignore the fact that the parents chose to live in a wealthy suburban community with a generally recognized high standard of living where transportation of children by private family vehicles is a necessity, sports and summer programs are the norm and housing is expensive. Because Riley’s parents cannot live together and his custodial parent is without personal transportation and had to obtain alternate housing, at least some consideration pursuant to C.G.S. § 46b-84 of these basic needs must be factored into a child support order. There is no mathematical formula for these considerations. Rather, the court must evaluate the child’s needs under all relevant circumstances.
Defendant’s argument that plaintiff should not be permitted to proceed with the child support motion misstates the procedural history of this case. Plaintiff’s motion was printed on the short calendar on December 20, 2016 at which time the parties agreed to a parenting plan. A pretrial on the issue of child support on February 7, 2017 was unsuccessful. The parties then received trial dates which were continued on numerous occasions due to court scheduling issues until the court was able to schedule a two-day hearing on October 17 and 18, 2017. The plaintiff pursued the motion with diligence.
The plaintiff requests that child support orders entered by this court be retroactive to the date of service of this petition on July 28, 2016. Although the parties were still living together until November 2016, the defendant refused to provide support and later reduced temporary support as of the filing of the petition. This forced plaintiff to incur credit card charges for basic expenses and obtain a $10,000.00 personal loan. As a result, she has exhausted her savings and has incurred debt which she is unable to pay. She relies on a loaned car from her current employer for transportation. Despite having historically provided at least four thousand dollars a month to plaintiff for her expenses and Riley’s expenses, and additional funds for Riley’s direct expenses, as well as providing an automobile to plaintiff for transportation, credit card access and a residence, defendant has provided almost no additional financial support for plaintiff or Riley once she initiated this action.
Based on the evidence in this case, the court concludes that child support orders retroactive to the date of service subject to credit for support payments made by the defendant are appropriate and warranted in the interests of equity in this case. The retroactive child support is ordered from November 2016 until the date of the current order.
" A court’s discretion must be informed by the policies that the relevant statute is intended to advance." Negro v. Metas, 110 Conn.App. 485-6, 955 A.2d 599 (2008). The defendant’s argument that there should not be a different child support standard for New Canaan, misses the purpose of the child support guidelines, the court cannot ignore the fact that the parents chose to live in a high income suburban community where transportation by private family vehicles is a necessity, sports and summer programs are the norm and housing is expensive. It is also patently inconsistent with the above principles that plaintiff is forced to rely on a vehicle borrowed from her employer for transportation to work and transporting the parties’ child. As noted above, both property and alimony orders are outside the scope of this motion for child support. However, applying the criteria of C.G.S. § 46b-84(d) to the facts of this case, consideration of transportation as essential for the safety and welfare of the child is appropriate. The defendant provided a vehicle to the plaintiff and paid taxes, insurance registration and maintenance for the vehicle for eight years. The plaintiff is without funds for basic transportation. The court has factored this basic need historically provided by the defendant as appropriate to its consideration of the statutory criteria. Because Riley’s parents cannot live together and his custodial parent is without personal transportation and had to obtain alternate housing fair consideration pursuant to C.G.S. § 46b-84 of these basic needs must be factored into a child support order. There is also a substantial benefit to the child remaining in the community where he is enrolled in school and has friends as well as where his father currently lives.
Furthermore, defendant’s argument that Riley’s present needs do not warrant child support over a subsistence level, is not supported by the guidelines methodology which has evolved " to reflect the average cost of childrearing over the life of the child" Child Support and Arrearage Guidelines, June 1, 1994, Preamble § (d)(3). If anything, Connecticut courts have acknowledged that the cost of raising a child will increase and support orders should anticipate and incorporate this reality to the extent possible. The court has calculated the total amount of retroactive child support in this case based on the amount of current child support ordered and the date of service July 28, 2016. Retroactive child support for a period of 80 weeks at $850.00 per week is $68,000.00. The parties have stipulated that the defendant is entitled to a credit of $25,000 toward any retroactive support orders. The court finds that the amount owed by the defendant for child support since the date of service with the above credit is $43,000.00. The defendant is ordered to pay this arrearage weekly in the amount of $170.00 (20% of $850.00) for 253 weeks. Total child support during that period is $1,020.00.
In deciding the issue of child support in this case, the court has carefully considered all of the criteria or factors set forth in General Statutes Section 46b-8. In assessing those statutory factors, the court is not required to make specific findings as to each. Szynkowicz v. Szynkowicz, 140 Conn.App. 525, 531, 59 A.3d 1194 (2013). In conducting that assessment the court considered the applicable statutory factors guided by, not only the testimonial and documentary evidence received, but by those principles of equity and fairness that govern the exercise of discretion in family disputes.
IV. ORDERS
A. Child Support
The court has also reviewed the current child support and arrearage guidelines and the provisions contained in General Statutes Section 46b-84 regarding the obligation of the parents to maintain the minor child according to their respective abilities and to provide health insurance coverage for said child. Based upon the financial affidavits and relevant financial records submitted by the parties at the trial, the court finds that, per the Child Support Guidelines, the presumptive child support obligation is $539.00 per week. The court further finds that said presumptive amount would be inequitable and inappropriate due to the establishment of several deviation criteria provided in Section 46b-215a-3. In light of the extraordinary disparity between the income of the parents [Subsection (b)(6)(B), and based on the application of the criteria in Conn. Gen. Stat. § 46b-84(d) to the facts of this case, the court finds that a child support order significantly greater than the presumptive amount is in the child’s best interest [Subsection (b)(6)(C) ]. The court will, therefore, order the defendant to pay to the plaintiff a weekly child support for the support of his child in the amount of $850.00 per week. The court has attached hereto[*] the guidelines worksheet based upon the submitted financial affidavits which reflects the amount of child support ordered.
B. Child’s Heath Insurance
The defendant shall continue to provide medical/dental insurance for the benefit of the minor child as available through his employment at reasonable cost to him. In the event that said insurance is no longer available to him, the plaintiff shall provide the same, if available at reasonable cost through any employment she may obtain. If neither party is able to obtain said insurance, the parties shall cooperate to obtain said insurance, the parties shall cooperate to obtain medical coverage for the child via the HUSKY program or any such program that may be in effect at the time. Pursuant to the guideline worksheet, the defendant shall pay 75% of all unreimbursed health-related expenses, including dental, orthodontic (including braces), optical, prescriptive, psychiatric, and the like. The plaintiff shall be responsible for the remaining 25% of said expenses. The defendant shall pay to the plaintiff his share of any unreimbursed medical/dental expenses within thirty (30) days of receipt of proof of payment by the plaintiff. The provisions of Section 46b-84(e) are incorporated into this order.
C. Qualified Childcare
Pursuant to the applicable child support guideline worksheet, the defendant shall be responsible for 75% of any daycare expense, occasioned by the plaintiff’s employment or educational obligations. The plaintiff shall be responsible for the remaining 25%. The parties shall cooperate in applying for any grants or available financial assistance in order to reduce the childcare expense. The defendant shall pay to the plaintiff, in advance, his proportionate share of any childcare expense on the first day of any month during which said expense is anticipated.
D. Dependency Exemptions
The defendant shall claim the child as a dependent for income tax purposes.
E. Attorneys Fees
The court finds that the plaintiff is entitled to reasonable attorneys fees related to this motion. The parties are ordered to schedule a hearing to provide evidence of attorneys fees in this case. [*] Editor’s Note: The mentioned Child Support Guidelines Worksheet, pg. 14, par. 1, has not been included in this Memorandum of Decision.