Opinion
No. FA 01 451626
March 18, 2004
MEMORANDUM OF DECISION
FACTS
The Hon. F. Herbert Gruendel granted the parties' dissolution of their marriage on April 19, 2002. At the time of the stipulated dissolution, the child support deviated from the Child Support Guidelines. The basis for the deviation was articulated during the canvass of the Plaintiff when the court stated: "[a]nd, that, I take it represents a small deviation because of the summer visitation?" Plaintiff's attorney responded, "[a]nd also the fact that there are, basically two full time jobs here that were . . ." (Transcript, 4/19/02, p. 5) The transcript indicates that counsel was cut off after the previous statement and the canvass was completed without further mention of the basis for the deviation from the Guidelines.
The Plaintiff filed a Motion for Modification of Child Support on March 3, 2003 (#131) alleging a substantial change in circumstances as follows: "[a] deviation as to child support was based on an understanding that Plaintiff would have the children for extended time during the summer, but that was not the case."
The court heard the Defendant's Motion #131 on October 4, 2003 and the parties submitted briefs on November 21, 2003.
The Plaintiff is employed full time for 15 years by the Connecticut Resource Recovery Authority (hereinafter referred to as "CRRA") as Division Head for Recycling and Environmental Education working 40-50 hours per week. He has been a Connecticut Senator for 9 years (Tr. 10/04/03, p. 56, ln. 22-27, p. 57, ln. 1-27) and works 25 hours per week as an elected official when the senate is not in session. He testified that his hours substantially increase while the Senate is in session. Mr. Gaffey works 65-75+ hours per week when the senate is not in session.
The Plaintiff's net weekly salary from CRRA is approximately $1,341.57. (Exhibit D.) The Plaintiff's net weekly salary from the Senate is approximately $533.27. (Exhibit E.) The Plaintiff's salary from both sources of income is $1,874.84. His current Child Support payments are $450.00 per week. The Guideline Support amount at the time of the dissolution, counting income from both sources of employment, was $514.28 per week. This represented a deviation from the Child Support Guidelines in the amount of $64.28 at the time of the divorce. On October 4, 2003 the presumptive amount of child support under the Guidelines was $549.00 or a deviation from the Child Support Guidelines of $99.00 per week.
Mr. Gaffey has the following parenting time with the minor children: every Thursday pick-up at 6:00 p.m. until drop-off at school Friday morning. Alternating weekends from Thursday at 6:00 p.m. until drop-off at school Monday morning. The parents alternate the major holidays. Father has summer vacation time with the children. In the summer of 2002, he had the children for 8 days of vacation. In the summer of 2003, he was unable to exercise his summer vacation time with the minor children because the legislature was in session the bulk of the summer.
The Plaintiff testified that on a number of occasions he was denied additional time with the minor children when requested. (Exhibit C) It was clear that the Plaintiff had little free time during the summer of 2003 because the legislature was in session most of the summer.
The Defendant filed the Motion #131 claiming that the Plaintiff failed to exercise "substantial" visitation during the summer of 2002 and 2003.
ANALYSIS
The Child Support Guidelines do not specifically exclude any part of income from a second job of a salaried wage earner pursuant to Conn. General Statute 46b-215d which provides as follows:
Sec. 46b-215d. Certain earnings not considered income for purposes of Guidelines.
Notwithstanding the child support guidelines established pursuant to section 46b-215a, in cases in which an obligor is an hourly wage earner and has worked less than forty-five hours per week at the time of the establishment of the support order, any additional income earned from working more than forty-five hours per week shall not be considered income for purposes of such guidelines. ( P.A. 99-193, S. 3, 16; 99-279, S. 32, 45.) (Emphasis added.)
However, the Preamble to the Child Support and Arrearage Guidelines, p.v. section (f)(1)(A)(i) states:
"Several commentators suggested a limitation on the number of hours of overtime pay or earnings from second jobs that should be considered in setting the child support award. They argued that including all employment income discouraged noncustodial parents from working more, or prevented them from reducing their hours to maintain frequent contact with their children.
Inclusion of at least some parental income earned for hours worked in excess of 40 per week is justified, in the commission's view, by the principal that the children should share equitably in the income of the parents. The commission agrees with the commentators, however, that some limitation on the number of hours considered is appropriate. It has accordingly established 52 total paid hours per week for regular, overtime, and additional employment as the maximum to enter into the calculation of gross income for child support purposes.
Clearly if the Plaintiff was an hourly wage earner only a portion of his income from the General Assembly would be counted for Child Support. However, the language from the Preamble to the Child Support and Arrearage Guidelines, p.v. section (f)(1)(A)(i) makes no distinction between a salaried wage earner and an hourly employee.
If the Plaintiff's second job was paid by the hour his hourly wage (for 30 hours per week) would be $17.78 per hour × 12 hours = $213.36 gross income to be added to Plaintiff's full-time employment for child support computations. Net income (deducting 12 × the hourly cost of Federal and State Income Tax, Social Security, Medicare and Blue Care Health listed on Plaintiff's Financial Affidavit) would total $143.36. Mr. Gaffey's child support obligation under this scenario would be based on net income of $1,341.57 ± $143.36 = $1,485. Using $1,485 as Plaintiff's net income his child support payment would be $468.00. The $450.00 per week that the Plaintiff is currently paying is within 15% of the Guideline amount and would not be grounds for a modification.
In Syragakis v. Syragakis, 79 Conn.App 170, at 174-75, 829 A.2d 885 (2003) the Appellate Court held "General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment." Hayward v. Hayward, 53 Conn. App. 1, 9, 752 A.2d 1087 (1999). "[A] child support order cannot be modified unless there is (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 absent the requisite findings . . . 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).
"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 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 . . ." Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991).
The Child Support Guideline Deviation Criteria provide as follows:
Sec. 46b-215a-3.
(a) Introduction
The current support health care coverage contribution, and child care contribution amounts calculated under section 46b-215a-2a of the Regulations of Connecticut State Agencies, and the amount of the arrearage payment calculated under section 46b-215a-4a of the Regulations of Connecticut State Agencies, are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. Any such finding shall state the amount that would have been required under such sections and include a justification for the variance. Only the deviation criteria described in this section establish sufficient bases for such findings.
(b) Criteria for deviation from presumptive support amounts
(1) Other financial resources available to a parent
In some cases, a parent may have financial resources that are not included in the definition of net income, but could be used by such parent or the benefit of the child or for meeting the needs of the parent. The following resources may justify a deviation from presumptive support amounts:
(A) substantial assets, including both income-producing and non-income-producing property;
(B) the parent's earning capacity;
(3) Extraordinary parental expenses
In some cases, a parent may incur extraordinary expenses which are not considered allowable deductions from gross income but which are necessary for the parent to maintain a satisfactory parental relationship with the child, continue employment, or provide for the parent's own medical needs. The following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts: CT Page 4389
(A) significant visitation expenses,
(5) Coordination of total family support
In some cases, child support is considered in conjunction with a determination of total family support, property settlement, and tax implications. When such considerations will not result in a lesser economic benefit to the child, it may be appropriate to deviate from presumptive support amounts for the following reasons:
(A) division of assets and liabilities,
(B) provision of alimony, and
(C) tax planning considerations.
(6) Special circumstances
In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Following are such circumstances:
Under the present circumstances, the Plaintiff is in a classic "Catch-22" situation. If he works the hours required by his two salaried jobs he is working 65-75+ hours per week. Additionally, the Defendant argues Plaintiff is required to spend a substantial amount of time with the minor children during the summer. Assuming for argument purposes that the Plaintiff is entitled to 8 hours sleep per night, he is left with 112 hours per week to divide between work and home. Utilizing the conservative figure of 75 hours per week at work plus 2 hours per day travel time to and from work, and 1 hour per day for personal grooming the Plaintiff is left with 20 hours a week to spend with his children. The court notes that no time has been allocated for meal preparation, shopping for food and clothing and other activities of daily life.
The Defendant's claim that the deviation from the Child Support Guidelines was based solely on Plaintiff spending substantial additional time with the children during the summer is not persuasive. The Plaintiff's employment obligations make this virtually impossible. Additionally, the court finds credible the testimony of the Plaintiff that he requested additional time with the children and Defendant denied his requests. The entire mosaic of the financial settlement must be considered by this Court to determine if the deviation is justified by other factors not fully articulated on the record at the time of the dissolution. The other factors considered by this court include the coordination of total family support, the division of assets and liabilities, the provision for alimony.
The Separation Agreement dated April 17, 2002 was incorporated in the final judgment. The Defendant received sole ownership of the marital home, alimony in the amount of $326.00 per week, a 2001 Grand Caravan (on which the Plaintiff is obligated to make the payments of $124.00 per week on) and half of the Plaintiff's retirement pursuant to the terms of the parties' agreement.
The Defendant failed to meet her burden of proof that a substantial change of circumstances has occurred since the judgment in this case. The Plaintiff's employment and the number of hours he works have not changed since the date of judgment.
ORDER
The court finds that after taking into consideration all of the relevant facts in this case, the presumptive child support guideline obligation, including both salaries of the Plaintiff is inequitable and inappropriate in this case. The Defendant's Motion for Modification of Child Support on March 3, 2003 (#131) is denied.
By the Court,
Holly Abery-Wetstone, J.