Opinion
No. FA 94-0317633 S
February 18, 2004
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court on May 10, 1995. At the time of the decree, there were three minor children ages 5, 4, and 2. In addition, at that time, there was a pendente lite support order of $40.00 per week which was not continued by the court. On the contrary, pursuant to the written Proposed Orders of the parties (signed by the plaintiff and by defendant's counsel in his absence due to his incarceration), in the words of the court, the "husband's child support obligation . . . has ceased due to his incarceration." In fact, no child support order was entered by the court at that time, however, a future order was contemplated because the issue was left to the wife's right to seek child support "once he [the husband] is released and employed." Also, at that time, the court found a child support arrearage in the amount of $924.00.
The husband was released from prison on August 2, 1999, but it was not until February 9, 2001, that the State of Connecticut filed a Motion for Modification and a Support Petition (in one pleading) on behalf of the wife to modify the decree of May 10, 1995, and to collect sums owed to the wife and children through the date of the petition. The defendant is currently incarcerated.
On August 8, 2001, a hearing was held before the Family Support Magistrate at which time the defendant appeared but was unrepresented by counsel. On the one hand, the defendant was admittedly less than cooperative regarding the provision of information regarding his current work status, however, on the other hand, he was in court, under oath, and the state was less than thorough in its examination of the defendant, and chose instead to impute income to him. Accordingly, on August 8, 2001, at the request of the state, the Family Support Magistrate issued a support order in the amount of $171.00 per week, retroactive to August 1999 (the date of the defendant's release from prison) using an imputed earning capacity of the defendant based upon the moneys expended by the state on behalf of his family, and not according to the defendant's actual earnings or earning capacity. At the time of said order, there was thus created a child support arrearage in the amount of $18,879.00. In addition, the defendant was ordered to pay $15.00 per week toward the accumulated arrearage created by the retroactive order. The total support order was $186.00 per week.
Complicating matters, the defendant settled a personal injury lawsuit in 2000. The State of Connecticut served notice pursuant to General Statutes § 17b-93, that it intended to enforce a statutory "50%" lien upon the proceeds, less a $1,000.00 credit, amounting to a total claim of $20,198.00, confirming the amount by letter dated May 2, 2000 entitled "Amended Lien Amount." The state first satisfied the Title IV-D arrearage and then applied the balance to the reimbursement of the outstanding total of Title IV-A funds in the amount of $34,385.67 previously advanced. The defendant questions this procedure, and seeks to have the state refund part of these moneys in the form of a credit toward his current Title IV-D child support obligation.
The defendant filed a Motion for Modification of Child Support and an Order Adjusting Arrearage (also in one pleading) on November 15, 2002, which motion was treated by the Family Support Magistrate as "a motion to modify and to open" (Tr. 10-11, 48, and 67). The matter was heard on June 25, 2003, and the motion was denied per a Memorandum of Decision filed by the Family Support Magistrate dated August 27, 2003. The present appeal pursuant to General Statutes § 46b-231(n) followed.
The question presented to the court is as follows: Have the substantial rights of the appellant been prejudiced because of a decision of the Family Support Magistrate in one or more respects so as to warrant an opening of the judgment?
On May 10, 1995, pursuant to the written Proposed Orders of the parties, the court entered a decree which, in pertinent part, terminated the pendente lite child support orders and eliminated the defendant's future child support obligation due to the defendant's incarceration. A preliminary question for this court to determine is whether or not the defendant's obligation to pay child support was actually terminated by the original decree, and if it was the intent of the court to preclude modification in the future. General Statutes § 46b-86(a) provides that "unless and to the extent the decree precludes modification" a future court has the power to do so. Our courts have held that such a permanent restriction must be "clear and unambiguous." Amodio v. Amodio, 56 Conn. App. 459, 471-72 (2000). Even a cursory reading of Judge Hull's decision of May 10, 1995, would not support such an interpretation. On the contrary, since both the plaintiff, or in the present circumstances, the State of Connecticut, where it is providing Title IV-D support services for the plaintiff, have a right to seek future child support upon the defendant's release from incarceration and his re-employment, it is clear that the court contemplated the entry of a child support order in the future.
Although it does not apply to the original decree, the agreement of the parties and the decree of the court presaged § 4 of P.A. 03-258, which mandates that as of October 1, 2003, where an obligor is "institutionalized or incarcerated" an initial or modified child support order must be based upon the obligor's "present income" determined in accordance with the Child Support Guidelines.
Accordingly, the better interpretation is that the defendant's obligation was merely suspended for an indefinite period, to be reinstated upon the happening of those two events (i.e., release from incarceration and re-employment). This interpretation comports with the rulings of the Connecticut Supreme Court, which do not favor permanent restrictions upon the modification of child support. In fact, as here, where there is no evidence that the minor children were represented by counsel at the original hearing, should the decree be interpreted to permanently restrict the modification of child support, it would not be enforceable in this respect. Guille v. Guille, 196 Conn. 260, 267-68 (1985).
The next question for the court is whether or not the Family Support Magistrate can entertain a motion for modification in the absence of an original child support order. This court answers in the affirmative. Again, the court turns to General Statutes § 46b-86(a) which provides that, "after the judgment," the moving party in a motion for modification must demonstrate a "substantial change of circumstances" since the date of the last order. Barnard v. Barnard, 214 Conn. 99, 114 (1990). In making such a determination, the court would normally compare the current financial affidavits of the parties with the ones filed at the time of the previous order. In a case where the original decree was silent on the issue of child support, the husband brought a motion for modification ten years after the fact. He failed to produce the original affidavits since none had been filed by either party at the time of the decree, and the trial court denied the motion on that basis. The Appellate Court reversed, alluding the general rule that while a party must "clearly demonstrate a substantial change of circumstances," under the facts of the case, the court should have considered the issue of child support despite the absence of the original financial affidavits for comparison. Kaplan v. Kaplan, 8 Conn. App. 114, 116-17 (1986).
In the present case, at the time of the hearing before the Family Support Magistrate on August 8, 2001, the defendant was no longer incarcerated, and he testified that he mowed lawns and performed "light carpentry" for a couple of contractors (Tr. 12-13; 18-19.) Two factors which would have enabled the Family Support Magistrate to make a finding of a substantial change of circumstances, even in the absence of an existing order for the payment of child support.
Once it is has been determined that a substantial change of circumstances has occurred since the date of the last order, the focus of the hearing before the Family Support Magistrate shifts to the determination of the child support obligations of the respective parties. Here, the Family Support Magistrate must apply the statutory criteria. The parents of a minor child have a statutory duty to provide support for that child "according to their respective abilities." General Statutes § 46b-84(b) and § 46b-215. This is a clear statement of public policy. The criteria to be applied by the court in determining whether a child is in need, and if so, the respective abilities of the parties, are set forth in General Statutes § 46b-84(d) as follows:
[T]he 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 the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child. (Emphasis added.)
Moreover, this obligation is to be based upon the net income of the parties. Ludgin v. McGowan, 64 Conn. App. 355 (2001). Mr. Mown testified that he had "misplaced" an "extremely detailed documentation" of his recent work history made at the request of the court (Tr. 17). He further testified that he worked anywhere from "no hours a week to possibly thirty hours per week" (Tr. 18). In addition, he even offered to pay $35.00 per week in child support (Tr. 21). Yet, nobody, including the Family Support Magistrate, pursued the required (and logical) course, and, for instance, with the defendant standing before the court, inquired as to his average weekly earnings from his lawn mowing and carpentry jobs. Instead, the Family Support Magistrate accepted the State's position and imputed a child support amount of $171.00 per week based solely upon the Title IV-A support provided to the plaintiff. The resort to imputed income should be as a last resort. Assuming arguendo that the Family Support Magistrate had before him a proper support petition brought pursuant to General Statutes § 46b-215(a)(3), that statute itself is very specific as to what circumstances the imputation of income is allowed:
[If] no information is available to the court concerning past ability to pay, the court may determine the support due for periods of time prior to the action as if past ability to pay is equal to current ability to pay if known or, if not known, based upon assistance rendered to the child. (Emphasis added.)
Again, the defendant testified that he was actually working at two jobs. Had a thorough canvass taken place, and had the Family Support Magistrate made a specific finding regarding the credibility of the defendant, the result could well have been different. It was not done. This was clearly erroneous and contrary to statute.
The problem was compounded further, when the order of the Family Support Magistrate was made retroactive to August 2, 2001, the date of the defendant's release from prison. On the strength of the child support order based upon imputed income, the retroactive order created an instant arrearage in the amount of $18,879.00, which the defendant was ordered to pay back at the rate of $15.00 per week, for a total support obligation of $186.00 per week. Again, assuming arguendo that even if the support petition was proper, the statute is very explicit as to the entry of retroactive orders in such cases. Unlike paternity actions or actions to collect Title IV-A payments:
No order for periodic payment of support may be subject to retroactive modification, except that the family support magistrate may order modification with respect to any period during which there is a pending motion for modification of a support order from the date of service of notice of such pending motion to the opposing party pursuant to section 52-50. General Statutes § 46b-231(s)(4).
The confusion stems, in part from the decision of the Attorney General to file both a motion for modification and a support petition simultaneously in the same pleading. The Family Support Magistrate himself referred to the motion as "inartfully crafted." (Memorandum of Decision, 1.) While the application of the statutory lien procedures and child support actions are not mutually exclusive; State v. Moreland, 47 Conn. Sup. 583, 33 Conn. L. Rptr. 626 (2003); the legal standards and rules to be applied to motions for modification and petitions for support are different from an action to seek reimbursement from a legally responsible person. In addressing a motion for modification, as here, the power of the Family Support Magistrate is limited, and "[n]o 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." General Statutes § 46b-86(a). Since the remedy is statutory, the provisions are applied strictly. Shedrick v. Shedrick, 32 Conn. App. 147 (1993).
The Petitioner is mixing two different procedures, that is one to establish and enforce a child support order under either General Statutes § 46b-86 or General Statutes § 46b-215(a)(1), and another for reimbursement from a responsible person for funds expended for his or her family under Title IV-A. By filing the two actions (i.e., modification and a support petition) in one pleading it virtually assured the present confused outcome. Where, as here, "one of the parties, or a child of the parties" is receiving state assistance or has requested "child support enforcement services under Title IV-D of the Social Security Act," a motion to modify must be filed in the Family Support Magistrate Division of the Superior Court. General Statutes § 46b-86(c). However, it is improper to attempt to "bootstrap" or "backdoor" retroactivity in connection with a motion for modification, in the guise of a support petition, under the mistaken theory that the latter permits a longer period of retroactivity under the facts of this case. The fact remains that the state is, by its own admission, bringing the action on the behalf of the plaintiff for Title IV-D support enforcement services. Moreover, the only cause of action which the plaintiff has is the one she bargained for under the terms of her Proposed Orders, the terms of which were approved and made a part of the Judgment on May 10, 1995 — namely, her right to seek a new child support order, following the suspension of the defendant's obligation to pay child support, pending the happening of the two events as aforesaid. Whether the motion for modification is brought by a party to the action or on behalf of that party by the State of Connecticut, the standards to be applied (i.e., "substantial change of circumstances" and limited retroactivity) are one and the same. No different standard is applied simply because the state stands in the plaintiff's shoes.
However, the State of Connecticut does have the right to establish and collect the remaining Title IV-A arrearage, if any, but it has simply followed the wrong course. Langan v. Weeks, 37 Conn. App. 105, 116 (1995); Thibeault v. White, 168 Conn. 112, 116-17 (1975). The request of the defendant himself should have redirected the attention of the Family Support Magistrate and the Attorney General to this issue. It is here that the state should have focused its part of the case. Here, retroactivity is not an issue. The uncontroverted evidence before the court is the fact that the State of Connecticut was partially reimbursed in 2000 for the assistance provided to the plaintiff, with the enforcement of its statutory "50%" lien on the proceeds of the defendant's personal injury recovery. However, the record reflects the fact that there is an outstanding balance, despite the settlement in 2000. Because the Title IV-D amount was substantially less than the amount of the Title IV-A assistance at that time, the defendant asks that the balance left over from the settlement proceeds be applied as a credit toward his child support obligation as determined by the Family Support Magistrate. The request may have some logic, however, it is without statutory support. General Statutes § 17b-93(d). On this issue, the decision of the Family Support Magistrate is correct.
The Superior Court has continuing jurisdiction regarding matters of child support. Amodio v. Amodio, 247 Conn. 724, 729 (1999). Accordingly, the court may open a judgment or decree upon motion brought more than four months following the entry thereof. Practice Book § 17-4(a) and § 25-38. In addition, where a Family Support Magistrate enters orders based upon imputed income of the payor, such orders are entered "subject to adjustment." General Statutes § 46b-215(a)(7)(C).
ORDER CT Page 2530
For the forgoing reasons the court finds that the substantial rights of the appellant have been prejudiced in that the decision of the Family Support Magistrate is in violation of constitutional or statutory provisions, and affected by other error of law, and IT IS HEREBY ORDERED THAT the defendant's Motion for Modification of Child Support and an Order Adjusting Arrearage dated November 15, 2002, is HEREBY GRANTED. Accordingly, the decisions of the Family Support Magistrate dated August 8, 2002 and June 25, 2003, are HEREBY REOPENED and REVERSED and the matter is remanded to the Family Support Magistrate for a full and fair hearing, consistent with the foregoing, to determine, inter alia, (1) the defendant's child support obligation as of May 9, 2001, based upon his then earnings or earning capacity, as may be appropriate, calculated in accordance with the Child Support Guidelines; (2) the child support arrearage, if any, as of the date of service of the Petition for Support/Motion for Modification dated May 9, 2001, including any sums owed as of May 10, 1995, with due credit for any sums paid by the defendant or on his behalf to date; (3) the appropriate arrearage owed to the State of Connecticut for any Title IV-A aid or assistance paid on behalf of the defendant or his family, with due credit for all sums paid by the defendant or on his behalf to date; (4) the current basic child support owed by the defendant as of the date of service of his Motion for Modification, calculated in accordance with the Child Support Guidelines, and, if applicable, the provisions of § 4, Public Act 03-258; and (5) a schedule of repayment for any and all arrearages, whether to the State of Connecticut or to the plaintiff.
The Court
Shay, J.