Opinion
No. FA-95-0067665S
July 1, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S APPEAL FROM FAMILY COURT MAGISTRATE (#123)
On April 10, 2010, the defendant, Charles Boucher, appealed a decision from the family court magistrate denying the defendant's request that prior child support overpayments be credited against a current arrearage. This appeal was heard by the court on June 28, 2010. The decision of the family court magistrate is affirmed.
In 1995, the defendant, who had been ordered to pay $87 per week in child support, had an arrearage in the amount of $5,047. He was ordered to address the arrearage by paying an additional $17 per week through wage execution. By May 31, 1997, the arrearage was paid in full. Despite this, the court support services office continued to collect the additional $17 per week, together with the court-ordered child support payments of $87 per week. As of February 17, 2010, those extra payments totaled $5,049. The defendant has not made child support payments since March 31, 2009, resulting in a new arrearage that continues to this date. The defendant seeks a credit against the current arrearage.
The family court magistrate recognized that the question of whether to grant a credit for a voluntary overpayment is based on equitable principles. May 3, 2010 Transcript, p. 6. While the magistrate allowed the defendant a credit in the amount of $1,371 for unreimbursed medical expenses; id. 9, 12; the magistrate found the remaining overpayment, calculated by the parties to be $3,311, to have been voluntary and a gift. Id., 9-10.
Several parties, arguably, could have prevented this situation, including the defendant and the court support services division. The support enforcement officer who appeared before the family court magistrate reported that normally, his office sends a notice to an employer once an arrearage has been fully paid, advising the employer to lower the payments. In this matter, however, the state has no records that such letters were ever sent. April 12, 2010 Transcript, pp. 17-18.
In 2006, the defendant began making child support payments directly to the plaintiff, Christie Kosak, and included in those payments the $17 per week overpayment. The defendant testified that the extra payments were made without an agreement, and he could not explain why the extra payments were made. Id., 16. When asked by the family court magistrate if he thought the ongoing, extra payments were for an arrearage, the defendant replied, "No. That's — I just — that's how it's always been. My mother took care of the books." The family magistrate then asked, "But the 104 in your mind represented current support, not any on back — no portion of it towards back monies, correct?" The defendant replied, "That's correct." Id., 16-17.
As a result of being awarded child support, a party "has the right and privilege to determine how and in what manner child maintenance funds should be spent." (Internal quotation marks omitted.) Goold v. Goold, 11 Conn.App. 268, 277, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987). In Lawrence v. Lawrence, 92 Conn.App. 212, 216, 883 A.2d 1260 (2005), the Appellate Court noted that a defendant's "unilateral decision to prepay his support obligation without the plaintiff's consent reduced her ability to make those decisions and usurped the right to control the disbursement of the support." Moreover, the court noted that there was nothing in the record "to indicate that the defendant informed the plaintiff, or the court, that he would be using these overpayments as credit against his future support obligation. The defendant, if he intended to make advance payments, could have attempted to reach an agreement with the plaintiff or to seek a modification from the court." Id.
Here, the overpayment was not deliberate, nor was it initiated with the intent to build a credit balance. On the other hand, it was not the product of an agreement with the plaintiff; April 12, 2010 Transcript, pp. 23-24; and the defendant never sought a modification from the court. The plaintiff had no way of knowing that the defendant would cease paying child support in 2009 and then claim that he no longer needed to pay support due to an outstanding credit. The defendant's request, if granted, would serve to reduce the plaintiff's ability to determine when and how child support payments should be spent. Further, it would guarantee that the existing arrearage would not be fully addressed. At this time, no child support payments are being made, the defendant's arrearage is growing, and there is a child who is entitled to the defendant's support in the amount ordered by the court.
For the foregoing reasons, the decision of the family court magistrate, denying the defendant's request that prior child support overpayments be credited against a current arrearage, is affirmed.