Opinion
No. FA-02-0125213S
March 27, 2009
MEMORANDUM OF DECISION RE Motion #108
The defendant, Arleno Sebastian, though his post-judgment motion for modification (motion #108), seeks a suspension of both his current support obligation of $102 per week for the support of his one minor child and his state's arrears order of $20 dollars per week for the duration of his most recent period of incarceration. The defendant claims that under the plain language of General Statutes § 46b-215e, he is entitled to have his modification granted. The state argues for the denial of the defendant's motion contending that, under the reasoning set forth Perez v. Beaulieu, Superior Court, judicial district of Waterbury, Docket No. FA91-0105291 (September 6, 2006, Cutsumpas, J.T.R.), the defendant has a job or tribal stipend available to him upon release, the amount of the arrears generated by denying the defendant's motion would be small and such a denial would not affect his relationship with the child who is the subject of this order. Further, the state argues that the defendant did not take the steps he promised the court he would take to either enroll the child as a member of his local Native American tribe or get himself and his stipend reinstated. They contend that such should be considered failure to obey a court order for which the defendant should not be rewarded by the granting of his motion to modify. This court agrees with defendant and grants his motion for modification.
The defendant was convicted of robbery in the second degree, a class C felony, assault in the third degree, a class A misdemeanor, intimidation of a witness, a class C felony and failure to appear in the first degree, a class D felony. The defendant was sentenced to serve a term of incarceration of 10 years, execution suspended after 78 months, and probation for 4 years. His maximum release date was July 20, 2009 and the department of corrections website indicates that he was released to supervised parole on September 16, 2008 and is currently on parole under the supervision of a parole officer. The defendant continued to make child support payments until he was banished by his tribe, the Mashantucket Pequot Tribal Nation. The defendant then filed a motion to modify child support pursuant to General Statutes § 46b-215e.
See http://www.ctinmateinfo.state.ct.us/detailsupv.asp?id_inmt_num=287944.
"As members of the tribe, the defendants received tribal incentive payments, which are monthly stipends that the tribe pays to its members." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 560, 944 A.2d 329 (2008).
The defendant filed the motion to modify at issue in this case on February 26, 2007. The motion was served on the plaintiff, Nyla Menor, on January 29, 2007. The parties appeared in court on several occasions beginning on June 5, 2007. At the June 5, 2007 hearing, the defendant testified that he had been "temporarily" banned from the tribe resulting in the loss of tribal benefits and that his bank accounts were frozen because he is being sued by the victim of his criminal conduct. (June 5, 2007 Transcript pp. 4-8.) The defendant also stated that he did not know what steps he needed to take so that the child would be able to continue to receive support money but would not object to signing paperwork that would allow the plaintiff to get the money for the child and that he would cooperate in completing the necessary paperwork. ( Id., p. 9.)
General Statutes § 46b-86(a), provides in relevant part: "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 . . ." Therefore, "according to the plain language of the statute, retroactive modification is permitted if there is a pending motion." Esposito v. Banning, 110 Conn.App. 479, 484, 955 A.2d 609, cert. denied, 289 Conn. 946, 959 A.2d 1101 (2008).
The plaintiff testified that she was told the minor child would be able to get the benefits of being a tribal member but that she was not sure what those benefits were aside from a bank account that would be held until the child reached the age of eighteen. (June 5, 2007 Transcript p. 10.) The plaintiff further testified that she thought the child would be entitled to receive thousands of dollars in tribal benefits, a free college education and possibly a house, but the plaintiff did not state who provided her with said information.
The defendant testified that he would sign any form necessary for the child to be entitled to benefits but that he would not sign the form for the child to become a member of the tribe until he was released from prison because he wanted to be able to attend the ceremony. He also stated that the child would not be entitled to "thousands" or a home but he thought there may be a way for the plaintiff to obtain some sort of support for the child without necessitating the child becoming a member of the tribe.
On that date the following colloquy took place:
THE COURT: I don't know what the arrangement is but I am going to require you to cooperate with whatever steps are necessary to pursue this. To find out exactly what her rights are and to see to it that she gets them. So, that she can be supported.
THE RESPONENT: Yeah, but I am not getting nobody sworn in — not right now.
THE COURT: Well, I don't know — maybe you are. It depends on what is required in order to get the support for the child. I am not concerned frankly about the house and so on at this point, but I am concerned that she gets support.
(June 5, 2007 Transcript p. 13.)
The court also requested that the state and the plaintiff assist in obtaining information on how to get the benefits for the child because the court recognized that the defendant's accessibility to the information may be hindered by his incarceration. The plaintiff stated that she would make some phone calls to find out what was required. (June 5, 2007 Transcript p. 15.) The court then ordered the defendant "to provide whatever information you have or whatever confirmation written or oral that is required of you to the tribe to — (A) — get the information on what is available and how to go about it and — [(B)] — to in fact, obtain the right to receive the support benefits that are your responsibility to pay." Id.
The next hearing in the case took place on August 7, 2007. The defendant was not present in court because a habeas was not properly done, but the plaintiff was present and had the paperwork for the defendant to fill out so the child would be able to obtain any benefits available. The paperwork involved was rather technical and dealt with questions of patriarchy, matriarchy and genetic testing. The assistant attorney general (AAG) stated that it took the plaintiff five years just to obtain the paperwork, the paperwork was rather complex and that the plaintiff did not have transportation to be able to give the paperwork to the defendant. As a result, the court set the case down for a subsequent hearing date so the plaintiff could give the defendant the paperwork and then for a second date two weeks later to give the defendant an opportunity to complete the paperwork. (August 7, 2007 Transcript pp. 1-4.)
Subsequently, DNA testing was performed to assist with making the minor child a member of the tribe. At the next hearing of February 5, 2008, before this court, the defendant testified that he was "temporarily" banned from the tribe because of his incarceration but that his release from incarceration did not guarantee he would be allowed back into the tribe. (February 5, 2008 Transcript pp. 20-22.) Attorney Hellum, the guardian ad litem and attorney for the minor child, stated that her independent research showed that making the child a tribal member would not produce any immediate financial benefit. (Transcript pp. 20-22.) During the course of the hearing, the defendant stated that he still did not have the forms. Thus, this court requested the assistance of Attorney Hellum in obtaining any forms the defendant would need to complete and further requested that Attorney Hellum bring the forms to the next hearing. (Transcript pp. 46-57.)
In addition on that date, this court stated it would request copies of the transcripts from the hearings that took place on June 5, 2007 and August 7, 2007. The court also stated that the questions the court wanted answers to at the next hearing included: (1) why the defendant was suspended from the tribe; (2) can the defendant be reinstated and if so how that process works; and (3) if there some benefit the child would receive if she were immediately enrolled in the tribe. The AAG requested that the defendant complete the forms to make the child a member of the tribe and stated that Magistrate Adams had told the defendant that his motion to modify would not be heard if the defendant did not cooperate in completing the paperwork to make the child a member of the tribe. This court stated that it would review the transcripts to determine if Magistrate Adams ordered the defendant to complete the forms as a condition to hearing the motion to modify.
The next hearing took place on August 19, 2008. The defendant testified that he had reviewed the forms and prepared a correspondence to the Tribal Elders requesting a meeting to discuss his banishment and having it lifted. As of the date of the hearing, the correspondence had not yet been mailed. (August 19, 2008 Transcript pp. 11-20.)
In final argument, the AAG argued that the arrearage that would accrue is approximately eight or nine thousand dollars which the defendant should have little difficulty paying once he is reinstated as a member of the tribe. (Transcript p. 27.) The AAG posited that the defendant's 2005 federal income tax refund check in the amount of $11,699 indicated that the defendant received a substantial amount of money by virtue of his membership in the Mashantucket Pequot Tribe. The defendant testified that his prior tribal income was approximately $2400 a month after taxes/support. (Transcript p. 29.)
The AAG also argued that the defendant did not have a relationship with the child because he has been incarcerated almost since the time she was born (Transcript p. 26) and denying the motion to modify cannot therefore interfere with the defendant's relationship with his daughter because none exists. Finally, the AAG argued that the motion should be denied because the defendant had not taken the steps to either have the child become a member of the tribe or get himself reinstated and that such should be considered failure to obey a court order for which the defendant should not be rewarded by granting the motion to modify. (Transcript p. 49-50.)
The defendant argued that the reason he had filed the motion to modify is because he does not know when or, for that matter if, the Tribal Elders will lift their banishment order. He noted that his own father was "temporarily" banished over nine years ago. (Transcript p. 51-52.)
During argument, the GAL initially objected to the granting of the motion to modify stating that the defendant has more potential than most people to pay the arrearage and that failure to grant the motion to modify will not hinder the defendant's relationship with his child because he does not have a relationship with her at this point in time. However, during final argument this court posed a question about whether the defendant's future income is really in the nature of an expectancy and not actual income because there is no guarantee the Tribal Elders will ever welcome the defendant back into the tribe and restore his stipend. The GAL then agreed with the court's suggestion "that it is more in the lines of expectancy than it is income we can actually count on." (Transcript p. 48.)
I
The defendant filed his motion to modify child support pursuant to General Statutes § 46b-215e which states: `Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income and substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order." It was noted at the outset that neither the plaintiff mother nor the child was the victim of the defendant's past criminal conduct.
The state, in seeking a denial of the defendant's motion, relies on the case of Perez v. Beaulieu, Superior Court, judicial district of Waterbury,. Docket No. FA91-0105291 (September 6, 2006, Cutsumpas, J.T.R.), as the basis for denying the defendant's motion to modify. In Perez, the court reversed the decision of the family support magistrate granting the defendant's motion to modify child support during his incarceration. The court stated: "The two policy goals underlying [§ 46b-215(e)] were explained by Patricia Wilson-Coker, Commissioner of the Department of Social Services, at the March 11, 2003 public hearing of the Human Services Committee. She indicated that the purpose of the law is to avoid the accrual of large, uncollectible arrearage amounts and to remove the psychological hurdle of large, possibly usually hopeless debt from the parent's future. In this way, it enables the parent to maintain or establish a parent-child bond upon release, which is impeded when there is an unrealistic arrearage. (Internal quotation marks omitted.) B.W. v. H.T., supra, Superior Court, Docket No. FA 90-0606785." Perez v. Beaulieu, supra.
A.
The state argues that the present case is very similar to Perez as it relates to the defendant's future earnings "because the defendant, as a tribal member, has a job and/or stipend available to him upon his release from prison." The defendant in Perez testified that he was a union carpenter earning $25 per hour prior to his incarceration and that he would be able to return to that job upon his release from prison.
However, this court finds, based on the testimony of the defendant, that the father in the present case, unlike the defendant in Perez, has little education, only a limited background in auto mechanics and does not know what type of work he will be able to obtain upon his release from prison. (August 19, 2008 Transcript p. 34.) Further, the defendant's banishment includes the loss of tribal benefits in the form of his monthly stipend (the defendant's health care coverage for his child remains active as does the defendant's).
The state stresses the fact that the defendant managed to pay his child support until as late as November of 2007 and as such, does not face a large uncollectible arrearage. Although the court agrees that the defendant managed to pay his child support while he was incarcerated, this court finds that it was only because the defendant received a stipend by virtue of his tribal membership. At the time of his release, the defendant's banishment from the Mashantucket Pequot tribe had not been lifted and there was no telling how long the banishment would last — or if it would ever be lifted. The banishment stopped the receipt of the stipend and what other payments the defendant was able to make during his incarceration were from his stipend-based federal tax refunds.
While the state insists that, "the defendant, as a tribal member, has a job and/or stipend available to him upon his release from prison," a review of tribal law in Connecticut demonstrates that the decisions about when, whether or if to restore tribal membership and associated stipend payments are entirely up to the various Tribal Elders, a decision the courts of this state have no jurisdiction over.
"[A] tribe does not need an express grant of authority or explicit treaty right from the federal government to exercise its inherent right to exclude a person from its territory. Spurred by the mandates of the ICRA [Indian Civil Rights Act, 25 U.S.C. § 1301 et seq.], many tribes have adopted constitutional provisions and enacted written tribal laws establishing substantive laws and formal procedures for banishment and exclusion actions." Kunesh, Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37 N.M. L.Rev. 85, 110 (2007).
Despite the fact that an express grant of authority is not required for the tribe to exclude a person from its territory, the state of Connecticut has adopted legislation recognizing this inherent right. For example, General Statutes § 47-59a provides in pertinent part: "(a) It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut's citizens enjoy. It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements.
"(b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to: (1) Determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts, and (5) determine tribal leadership in accordance with tribal practice and usage." In addition, "[a]ny member of the Eastern Pequot, Western Pequot, Mohegan, Schaghticoke or Golden Hill Tribe is eligible to reside on the reservation assigned to the use of his respective tribe. The tribe to whom a reservation is assigned shall decide which of its members may reside on the reservation of the tribe, and the decision of the tribe shall not be reviewable by the Council." Regs., Conn. State Agencies § 47-59b-29.
"A review of local tribal practices and laws reveals that there is a distinction made between `banishment' and `exclusion' of persons. The Mashantucket Pequot Tribal Constitution grants to its Elders Council the authority to `hear and determine any matter concerning the banishment or exclusion of any person from the Mashantucket (Western Pequot) Reservation and tribal lands as necessary to preserve and protect the safety and well-being of the Tribe and the Tribal Community, and the removal of any Tribal benefits and membership privileges . . .' Mashantucket Pequot Constitution, Article XII, Section 1(d).
"The Mashantucket Pequot `Elders Council Guidelines Governing Banishment, Exclusion and Suspension or Termination of Tribal Benefits and Privileges' further explains that, `[b]anishment orders shall apply to tribal members and exclusion orders shall apply to non-tribal members. A tribal member may be banished or have his or her tribal benefits or privileges suspended or terminated and any non-tribal member may be excluded for conduct that occurs either on or off the Mashantucket Pequot reservation.' Sections 1.1 and 1.4. From these provisions, it may be concluded that banishment includes not only exclusion from tribal lands, but also the loss, of tribal benefits." Passamaquoddy Tribe v. Francis, No. 00-CA-01 (Tribal Court Appellate Division) (July 9, 2000, Shibles, J.).
"The Guidelines are distributed to tribal members to inform them of the types of conduct that may result in banishment, exclusion, or forfeiture of tribal benefits and to inform them of the banishment period for the offense." Kunesh, supra, Banishment as Cultural Justice in Contemporary Tribal Legal Systems, 37 N.M. L.Rev. 110 (2007). "The targeted conduct includes the sale and use of illegal drugs, sexual abuse and domestic violence, threatening or violent conduct, major crimes committed off the reservation, and disloyalty." Id., n. 198.
This court contacted the Mashantucket Pequot Museum and Research Center in an attempt to obtain the guidelines but was informed that they are available only to tribal members.
With the restoration of the defendant's tribal stipend thus an uncertain future event, this court must treat the defendant's future entitlement to tribal benefits as a mere expectancy. In so doing this court looks to Pasqua v. Pasqua, 16 Conn.App. 278, 547 A.2d 556 (1988), wherein the Appellate Court stated: "Implicit in the trial court's order was the finding that the defendant was unable to pay any amount of child support at the time of the judgment. The trial court's order is clearly one for speculative prospective payments based on an anticipation of a change in his circumstances. That ruling constituted an abuse of discretion, which must be held to constitute error. Manaker v. Manaker, 11 Conn.App. 653, 655, 528 A.2d 1170 (1987) (`any future benefit the defendant may receive from the possibility of the housemate transferring assets to him is, at best, speculative and should not have been received into evidence for the purpose of assessing the defendant's future economic prospects'). This is further consistent with the holding in Cuneo v. Cuneo, 12 Conn.App. 702, 709, 533 A.2d 1226 (1987), that financial awards "should be based on the parties' current financial circumstances to the extent reasonably possible." Pasqua v. Pasqua, supra, 280.
The case now before this court is no different from the cases cited above in that any future benefit the defendant may receive is subject to his tribal membership being reinstated, something of which there is no guarantee. Thus, looking to the defendant's financial circumstances at the time of the making of the motion, this court finds that he did not have any income or assets upon which to base an award of support and denying his modification on that basis would be tantamount to speculation based on an anticipation of a change in circumstance.
B.
The state argues that the present case is also very similar to Perez as it relates to the impact of a denial of the defendant's motion on his relationship with his child, in so far as the additional arrearage that would result upon the defendant's release would "only" be "several thousand dollars," which is "quite small and will not hinder his relationship with the child." (State's Brief of September 26, 2008 p. 2.)
As noted above, the defendant was released to supervised parole on September 16, 2008.
As noted above, the court in Perez cited the second policy goal underlying C.G.S. 46b-215(e), which was "to remove the psychological hurdle of large, possibly usually hopeless debt from the parent's future. In this way, it enables the parent to maintain or establish a parent-child bond upon release, which is impeded when there is an unrealistic arrearage. (Internal quotation marks omitted.) B.W. v. H.T., supra, Superior Court, Docket No. FA 90-0606785." Perez v. Beaulieu, supra.
While it is true that the defendant in this case does not presently have a relationship with the child because he has been incarcerated almost since her birth, the state's argument that, ipso facto, there therefore is no potential disruption is flawed because it fails to consider and address the second component of the policy goal underlying General Statutes § 46b-215e, that not only maintaining, but establishing a parent-child relationship not be hindered by the presence of a unrealistic arrearage.
In testimony throughout the hearings before this court, the parties to this action demonstrated repeated conflict over issues relating to child support and prior monies owed or paid by the defendant father to the plaintiff mother. This situation was only further complicated by the defendant's status as a Mashantucket Pequot and the financial rewards presumed to be inherent with that status. Given the testimony, this court is not convinced that the existence of unpaid arrears totaling over five thousand dollars would serve as impediment to the defendant in establishing a meaningful ongoing relationship with the minor child in this case.
II.
As noted above, the defendant filed his motion to modify child support pursuant to General Statutes § 46b-215e which states: "Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income and substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order."
Neither the plain language of the statute nor the courts ruling in Perez allows a trial court to impose additional affirmative requirements not contained in the statute upon litigants before they are entitled to have their motions for modification heard or granted. If a defendant can show he has no income or assets with which to pay his order and conforms to the factual circumstances, articulated in Perez, upon which the statute was based, that defendant is entitled to the relief afforded by the statute.
Nevertheless, the state argues that the defendants failure to comply with an order of the court directing him to cooperate by taking whatever steps were necessary to secure support for his child constitutes a basis upon which to deny the defendant's motion to modify. They contend that his failure to act in an affirmative and timely manner to get himself reinstated as a tribal member should be considered a failure to obey a court order for which the defendant should not be rewarded by granting his motion to modify.
As outlined in the June 2007 colloquy cited above, the defendant was ordered to participate in any way possible in securing cash tribal benefits for the minor child. The state argues that compliance with the order of Magistrate Adams was a condition precedent to the court hearing and granting the motion to modify. This court, having reviewed the transcripts and the law, does not agree.
Attorney Hellum, the guardian ad litem and attorney for the minor child, stated that her independent research showed that making the child a tribal member would not produce any immediate financial benefit. (February 5, 2008 Transcript pp. 20-22.) Magistrate Adams himself recognized that it might be difficult for an incarcerated obligor to contact the tribe and obtain any paperwork necessary for establishing tribal membership. This is evident from the courts request for assistance from the plaintiff and the GAL. Even the AAG stated that it took the plaintiff almost five years to obtain paperwork from the tribe and the GAL stated that she "asked numerous questions and . . . reported to this Court previously that I've made many calls in trying to come up with the answers about reinstatement, about benefits and all of that. And I don't have an answer. And I think there was no tribal policy that I could find even researching in the tribal laws as to what would stop a person from being reinstated or what would make it more likely that a person would be reinstated. So I think the only point that I can make in that regard is we don't have an answer." (August 19, 2008 Transcript. p. 48.)
The defendant testified that he waited until close to his release date from prison to contact the Tribal Elders. He stated that his cousin advised him to wait until he was out of prison because the Elders would want to see that he has made some positive changes in his life such as going to school and finishing programs which he only recently accomplished. (August 19, 2008 Transcript p. 51.) The defendant stated he felt it was rather pointless for him to apply to have his banishment lifted while he was still incarcerated because his incarceration was clearly the reason for his banishment despite the fact that the tribe took a few years from the date of his incarceration before formally banishing him.
This court finds that, based on the evidence available to the defendant from his own association with the tribe and from the research conducted by the GAL in this case, his decision to delay both his application for admission to the tribe and that of his child until after his release from prison was reasonable under the circumstances and, however poorly timed, does not constitute a bar to having his motion heard and granted. The research conducted by the GAL confirmed that the restoration of his tribal stipend was far from certain to occur, either then or in the future, and that the child's immediate entry into the tribe would not make her eligible to receive any cash benefits of her own (or banked on her behalf) during the period of her minority.
To therefore deny his motion on the grounds that the defendant did not obey the strict mandates of the court or the state, regardless of whether they might have been rationally related to any proven assets or cash support for the child, would be inappropriate and inequitable.
In summary, based on the facts in this case, it is this court's ruling that the twin policy goals of General Statutes § 46b-215e as outlined in Perez would be thwarted by a denial of the defendants motion. First, the defendant no longer has a ready source of income by virtue of his banishment by the Mashantucket Pequot Tribal Elders, a banishment from which he has no guarantee of reversal, thus the arrearage that has accrued will not be easily payable. Second, as it relates to impediments to the parent-child relationship, the court rules that the state's argument that the defendant does not have a relationship with the child in this case because he has been incarcerated almost since her birth and thus there is no relationship to disrupt is misplaced because it fails to address and consider that establishing a parent-child relationship may also be hindered where there is a large uncollectible arrearage — a proposition supported by the facts in this case.
Finally, this court rules that the defendant's motion may not be denied for his failure to obey additional affirmative requirements imposed by the court in this case. Neither the plain language of the statute nor the court's ruling in Perez allows the trial court to impose additional affirmative requirements upon litigants before they are entitled to have their motions for modification heard or granted. The defendant has shown he has no income or assets with which to pay his order and his situation conforms to the factual circumstances, articulated in Perez, upon which the statute was based, therefore the defendant is entitled to the relief afforded by the statute.
The defendant's motion for modification is granted. The substantial change in circumstances is his incarceration and the attendant loss of the income derived from his tribal stipend. His current support order is hereby suspended for the period from the date of the service of his motion, January 29, 2007 until the date of his release from incarceration, September 16, 2008. The payment of any arrears orders are also suspended for that same period. Arrears are to be recalculated based on the above orders. All prior current support and arrears orders are returned to full force and effect upon his release from incarceration in 2008.