Opinion
No. FA99-1054483S
February 11, 2010
MEMORANDUM OF DECISION
The defendant, Eric Mullai, appeals the April 9, 2009 decision of the family support magistrate that denied his motion for modification of child support. Specifically, the defendant claims that the magistrate erred by deviating from the Child Support and Arrearage Guidelines (the guidelines) without making specific findings on the record to support such deviation. This court agrees and remands the case for action consistent with this decision.
The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b-215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b-215c. See Regs., Conn. State Agencies § 46b-215a-1 et seq.
FACTS
The parties appeared before the family support magistrate on April 9, 2009 on the plaintiff Pranver Mullai's motion for modification of child support. Prior to this date, the defendant's child support obligation was $340 a week in accordance with a previous order. After meeting with the support enforcement officer, however, it was determined that pursuant to the guidelines, the defendant's child support obligation should be decreased to $268 a week. When the matter was presented to the magistrate, the defendant requested a modification of the child support amount in accordance with the guidelines. The plaintiff objected. Specifically, she urged the magistrate to calculate the defendant's income by using twelve hours of overtime pay, as opposed to the five hours that were included. Thereafter, the magistrate encouraged the parties to confer and come to an agreement during the recess.
According to the transcript of the hearing, the information used to calculate this amount was based on the defendant's fourth quarter income, divided by thirteen weeks and the plaintiff's yearly income, divided by fifty-two weeks.
When the parties returned before the magistrate, the support enforcement officer indicated that the parties were unable to reach an agreement and that, pursuant to the guidelines, the recalculated child support obligation was now $286 a week. Again, the plaintiff objected to a child support order in that amount on the ground that the defendant underreported his income. After hearing arguments from both parties, the magistrate found that $340 a week continued to be a fair and equitable amount on the grounds that it was "in the best interest of these children, and there is some disparity in income." Accordingly, the magistrate denied the motion to modify the child support order.
According to the transcript of the hearing, the child support officer recalculated the defendant's child support obligation by utilizing his wage information from the previous year.
Although the motion for modification was originally filed by the plaintiff, the court concluded that it was the defendant's motion and that he had not met his burden of proof.
On April 21, 2009, the defendant filed an appeal of the magistrate's ruling on the grounds that (1) the magistrate failed to follow the lawful procedure; (2) it was clearly erroneous in view of the entire record; and (3) it was arbitrary and capricious because the magistrate failed to make a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. The plaintiff filed a response on January 13, 2010.
DISCUSSION
"The right to appeal from a family magistrate order to the Superior Court is created by [General Statutes] § 46b-231(n)." Sherman v. Sherman, 41 Conn.App. 803, 806, 678 A.2d 9 (1996). Section 46b-231(n)(1) provides: "A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section." Moreover, § 46b-231(n)(7) provides in relevant part: "The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the defendant have been prejudiced because the decision of the family support magistrate is: (A) in violation of constitutional or statutory provisions . . ."
There is a two-part test for determining whether a party is aggrieved by a particular decision. "First, the [party] claiming to be aggrieved must have a specific, personal and legal interest in the subject matter of the decision . . . Second, the [party] must establish that [such] interest has been specially and injuriously affected by the decision." Newman v. Newman, 235 Conn. 82, 103, 663 A.2d 980 (1995). The court finds that, because the defendant claims that the magistrate ordered him to pay an amount that deviated from the guidelines without making specific findings on the record, the defendant's interest has been specially and injuriously affected. Accordingly, this court has jurisdiction to consider the appeal.
The issue, therefore, is whether the case should be remanded pursuant to § 46b-231(n)(7) because the magistrate's ruling violated a constitutional or statutory provision. It is well settled that the guidelines must be considered in all child support determinations. General Statutes § 46b-215b. Moreover, there is a rebuttable presumption that the court must order the child support amount that results from the application of the guidelines. Castro v. Castro, 31 Conn.App. 761, 766, 627 A.2d 452 (1993), citing General Statutes 46b-215b(a). Any deviation from the presumptive amount must be premised on the criteria enumerated in the guidelines. Baker v. Baker, 47 Conn.App. 672, 677, 707 A.2d 300 (1998). "If the court deviates from the presumptive support amount, it must determine and state on the record (1) the presumptive amount of the weekly support order recommended by the guidelines and (2) specific findings that application of the presumptive support guidelines is inequitable or inappropriate." Tracey v. Tracey, 97 Conn.App. 122, 126, 902 A.2d 729 (2006).
Under § 46b-215a-3 of the Regulations of the Connecticut State Agencies, there are six categories of criteria which permit deviation from presumptive support amounts.
There is no dispute in the present case that the magistrate deviated from the guidelines when he maintained the defendant's child support obligation at $340 a week. The question, therefore, is whether such deviation was erroneous. The defendant argues that the magistrate's ruling should be reversed because he failed to specify on the record the reason why he ordered an upward deviation from the child support guidelines, in violation of § 46b-215b(a). The plaintiff responds that the magistrate's ruling was correct because he did not find the defendant's testimony credible.
As described above, the magistrate's stated reasons for denying the motion was based on two grounds; the best interests of the children and disparity in income. Section 46b-215a-3(b)(6)(B) of the Regulations of Connecticut State Agencies provides that the court may deviate from the presumptive support amounts if there is "[e]xtraordinary disparity in parental income." In this case, the court only found that there was some income disparity. Some does not necessarily equate to extraordinary. See Korsgren v. Jones, 108 Conn.App. 521, 532, 948 A.2d 358 (2008) (although there was significant disparity between parents' incomes, there was no error in trial court's finding that such disparity was not extraordinary). Moreover, in order to base the deviation on income disparity, the regulation states that the court must first make a finding that "(I) such deviation would enhance the lower income parent's ability to foster a relationship with the child; and (ii) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation." Section 46b-215a-3(b)(6)(B). The magistrate failed to make the requisite findings here. Accordingly, his conclusion that there was "some disparity in income" was not a sufficient basis for deviating from the amount determined by the guidelines.
Similarly, the magistrate's statement that "in the best interest of these children . . . the present order of [$]340 is fair and equitable" was insufficient to rebut the presumption that the court must order the child support amount determined by the guidelines. Section 46b-215a-3(b)(6)(C) does allow the court to base a deviation on the best interests of the child. Nevertheless, in this case, the magistrate failed to make any factual findings on the record that supported his conclusion that an upward deviation would be in the children's best interests. A mere statement that the deviation is "in the best interest of these children" is insufficient and circumvents the purpose of the guidelines, namely, to ensure the uniform calculation of child support. See Marocco v. Giardino, 255 Conn. 617, 627, 767 A.2d 720 (2001) (discussing the primary purpose of the guidelines). Otherwise, it would be too easy for the court to impose its own discretion and disregard the statutory mandate of § 46b-215b under the guise that it was in the best interest of the child. Id., 639 ("it is neither the family support magistrate's nor [the Supreme Court's] function to override the commission's legislative determination[s] . . .").
"The commission recognizes that keeping the deviation criteria to a minimum serves the stated guidelines purpose of ensuring consistency . . . The commission added language in the introduction and throughout the section to clarify its intent to restrict the application of the deviation criteria . . ." Child Support and Arrearage Guidelines (2005) preamble, § (j)(1) and (2), p. xii.
In Marocco v. Giardino, supra. 255 Conn. 635-36, the court explained that the regulation that permits a deviation based on the child's best interests does not give the court impermissibly wide discretion. "[T]he best interests of the child criterion is comparable to the catchall deviation criterion, other equitable factors . . ." Id., 636. "It is true that the language of [the `other equitable factors'] criterion is very broad and would, at first glance, appear to give the trial court almost as much discretion as it had before the promulgation of the guidelines . . . [T]o [give such discretion] would be inconsistent with the circumscribed discretion that the guidelines have imposed on the trial court by the 1989 legislation that replaced the broad discretion that the trial court had in such matters before the promulgation of the guidelines." (Internal quotation marks omitted.) Id. 635-36.
In addition, the magistrate erred as a matter of law because he failed to determine the amount of support indicated by the guidelines and make any findings on the record that the application of the guidelines would be inequitable or inappropriate in this case as set forth in § 46b-215-3(a) of the Regulations of Connecticut State Agencies. Section 46b-215a-3(a) provides in relevant part: "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 factual finding to justify the variance." In the absence of these specific findings, a court cannot deviate from the guidelines. McHugh v. McHugh, 27 Conn.App. 724, 729, 609 A.2d 250 (1992); see Mullin v. Mullin, 28 Conn.App. 632, 637, 612 A.2d 796 (1992) (court reversed and remanded a trial court decision which deviated from the guidelines without making a specific finding on the record that application of the guidelines would be inequitable or inappropriate according to the deviation criteria).
In light of the above, the court finds that the magistrate erroneously ordered the defendant to pay a child support amount that deviated from the guidelines. Accordingly, the case is remanded for a finding on the record of the presumptive amount of child support and an articulation of why a deviation, if any, from this presumptive amount is warranted.