Opinion
No. FA 99 0071258
December 28, 2005
MEMORANDUM OF DECISION
This matter comes before the court upon the motion of the Plaintiff mother (the "Plaintiff") seeking to modify the current support order for the one minor child who has his principal residence with her.
The following facts are undisputed. The marriage of the parties was dissolved on January 4, 1991, in the State of New York. The decree was entered pursuant to a written agreement dated November 21, 1990 (the "Agreement"). The terms of the Agreement were incorporated into the court's decree but, by its express terms, the Agreement was to survive and not be merged in the decree. The parties had one child, issue of the marriage, who was not quite two years of age at the time the decree entered. Provisions for his support included orders that the Defendant father (the "Defendant"), inter alia, (i) pay child support in the amount of $98 per week; (ii) provide medical insurance coverage for the child, (iii) pay for all necessary and reasonable unreimbursed medical and dental (broadly defined) expenses of the child and (iv) pay for the child's college education (tuition, books, room and board, and expenses) for up to four years following his high school graduation. By agreement dated September 6, 1991, the decree was modified to increase child support to $116 per week and, further and in addition to the foregoing, to require that Defendant pay one-half of the child's annual clothing expenses. The Court does not have before it the financial affidavits submitted at the time the decree entered. The Defendant testified that his income was approximately $35,000 per year at the time the decree entered. He could not recall if the Plaintiff was employed at that time.
Almost 15 years have elapsed since the entry of the decree. The financial orders referenced above have not since been modified. The minor child is a few months short of seventeen years of age. The parties have each moved on to new marriages and each has relocated a number of times. The Plaintiff currently resides in Connecticut, where she works part-time as a licensed practical nurse (earning approximately $176 per week gross/$151 net) and is otherwise engaged as a homemaker for her husband and two other children from a subsequent marriage. The Defendant resides in Iowa where he works in a management capacity (earning $2,278.85 per week gross/approximately $1,656 net after factoring back in his 401k contribution).
The issue of support was first brought to the courts of this State in 1999 when the Plaintiff, after registering the New York dissolution decree, filed a motion seeking to modify the existing child support order. At or about the same time, issues regarding custody and visitation were raised. The matter went before Judge Steinberg who, by order dated December 6, 2000, denied Plaintiff's motion for modification of child support and left custody and primary residence (with Plaintiff) intact while increasing the child's visitation time with the Defendant (who then lived in Massachusetts). In denying Plaintiff's motion for modification of child support, Judge Steinberg found that the Agreement "was not inequitable when entered into and there were no unanticipated or unreasonable changes in circumstances." Mundus v. Mundus, (Superior Court, Judicial, District of Tolland at Rockville, Docket No. FA 99-0071258) (December 6, 2000). Although the Court did find that the child's needs were not being met, it did not modify the child support but, instead, increased Defendant's visitation with the child. Again, this Court does not have before it the financial affidavits, if any, submitted in the foregoing proceeding conducted before Judge Steinberg. Since that time, the only change worthy of mention is that the Defendant was relocated to Iowa by his employer in the spring of 2003.
DISCUSSION
A resolution of the issue in the present case is governed by the substantive law of the State of New York. Pursuant to Connecticut General Statutes § 46b-71(b), which governs the filing of a foreign out-of-state matrimonial judgment and the enforcement of that judgment, the New York judgment was registered in Connecticut as required. It is well-settled that "when modifying a foreign matrimonial judgment, the courts of this state must apply the substantive law of the foreign jurisdiction and failure to do so constitutes plain error." Vitale v. Krieger, 47 Conn.App. 146, 149, 702 A.2d 148 (1997).
General Statutes § 46b-71(b) provides: "Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling."
The threshold issue before the Court is whether the guidelines contained in New York's Child Support Standard Act (the "CSSA") are applicable to the present motion.
"The CSSA was enacted in 1989 to remedy problems caused by the failure of legally responsible individuals to meet their child support obligations . . . The Legislature adopted these guidelines that permit judicial discretion and establish minimum and meaningful standards of obligations based on the premise that both parents share responsibilities for child support." (Citation omitted.) Chesler v. Bronstein, 176 Misc.2d 237, 242, 672 N.Y.S.2d 82 (1997). "As originally enacted the CSSA permitted the parties to enter into voluntary agreements with respect to fixing child support. The law permitted the parties to `opt out' of the guidelines as long as the decision to deviate was made knowingly. A finding that either party was unaware of the CSSA would invalidate any agreement that did not comply with its mandates. ( Sloam v. Sloam, 185 A.D.2d 808 (2d Dept. 1992).)" Sheridan v. Sheridan, 174 Misc.2d 249, 252, 663 N.Y.S.2d 797 (1997).
The Defendant contends that the parties "opted out" of the CSSA pursuant to the terms of the Agreement and, therefore, the guidelines are inapplicable and Plaintiff cannot establish any remaining grounds for modification. The Plaintiff, on the other hand, contends that the Agreement failed to comply with the CSSA and, therefore, any attempt to opt out of the guidelines was ineffective. She asks that the Court enter a support order in accordance with the guidelines.
In support of her claim that the Agreement failed to comply with the express provisions of the CSSA, the Plaintiff argues that the Agreement contains no language that provides that the parties have been advised of the provisions of the child support guidelines nor any language that the basic child support obligation provided for in the Agreement would presumptively result in the correct amount of child support to be awarded. She further argues that the separation agreement fails to even mention the CSSA and observes that it is impossible to discern whether the $98.00 support provision contained therein is or is not a deviation from the guidelines.
Specifically, the plaintiff points to New York Domestic Relations § 240(1-b) (h), which sets forth the guidelines to determine the amount of child support at the time of divorce. The statute provides: "A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision, and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded. In the event that such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations which deviate from the basic child support obligation provided such agreements or stipulations comply with the provisions of this paragraph. The court shall, however, retain discretion with respect to child support pursuant to this section. Any court order or judgment incorporating a validly executed agreement or stipulation which deviates from the basic child support obligation shall set forth the court's reasons for such deviation." Domestic Relations § 240(1-b) (h).
In response, the Defendant argues that when the divorce decree was rendered, the effective statutory language (1) did not require the Agreement to set forth what the child support guideline amount would have been; (2) did not require a statement setting out the reason for any deviation from the CSSA; (3) did not condition the validity of the Agreement upon compliance with the provisions of the act; and (4) did provide that the child support standards established by the CSSA are not applicable to agreements or stipulations validly executed. The Defendant further claims that the statute has been amended since the Agreement was entered into and that the language upon which the Plaintiff relies was not part of the statutory language in effect when the parties divorced. Furthermore, the Defendant argues that the Agreement complied with the CSSA at the time it was entered into, and remains valid because the amended statute is not retroactive in effect.
The Defendant's analysis correctly describes the evolution of the statute. In 1991, the CSSA provided:
A validly executed agreement or stipulation voluntarily entered into between the parties after the effective date of this subdivision presented to the court for incorporation in an order or judgment shall include a provision stating that the parties have been advised of the provisions of this subdivision. Such provision may not be waived by either party or counsel. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into validly executed agreements or stipulations. The child support standards established by this subdivision shall not be applicable to such agreements or stipulations when executed. The court shall, however, retain discretion with respect to child support pursuant to this section.
New York Domestic Relations Law § 240 1-b(h).
The statute was amended subsequent to the execution of the Agreement and the entry of the dissolution decree. "In 1992 the CSSA was amended to provide further safeguards ensuring that any waiver of the application of child support guidelines is made knowingly by the parties and is fair to the child for whom the support is awarded. The law now provides that where the parties enter into an agreement deviating from the child support guidelines, not only must they know about the CSSA, but there must be an actual calculation of the amount of support that strict application of the guidelines would yield and the reasons for not providing that amount. Moreover any court order incorporating an agreement by the parties which deviates from the guidelines must set forth the reasons for the deviation." Sheridan v. Sheridan, supra, at 252. Consequently, since most of the deficiencies identified by the Plaintiff derive from statutory amendments which postdate the Agreement and the decree entered pursuant thereto, they cannot serve as the basis to invalidate an agreement which otherwise complied with the then existing statute.
The Court notes that the statute in effect at the time of the Agreement did provide that an agreement "opting out" of the guidelines "shall include a provision stating that the parties have been advised of the provisions of this subdivision. Such provision may not be waived by either party or counsel." New York Domestic Relations Law § 240 1-b(h). The Agreement did not contain such a provision, however the Court finds, for a number of reasons, that the absence of such language should not invalidate the agreement. First, the Court has no reason to believe that the parties were unaware of the CSSA and its applicability to their case. They entitled their separation agreement as an "Opting Out" agreement, which clearly evinces an intent not to be bound by the CSSA guidelines. In addition, each was represented by counsel and paragraph 18.1 of the Agreement states that "each of the parties represents that both the legal and practical effect of this agreement in each and every respect . . . has been fully discussed by and between both of them and explained to them by their respective attorneys . . ." Further, paragraph 24.7 states that "the parties acknowledge that they are entering into this Agreement freely and voluntarily; that they have been duly apprised of their respective legal rights; that all the provisions hereof, as well as all other questions pertaining thereto, have been fully and satisfactorily explained to them by counsel of their own choice; that they have given due consideration to such provisions and questions and the answers thereto, and that they clearly understand and assent to all the provisions." A fair reading of these two paragraphs demonstrates that the parties were not only informed and advised of the law applicable at the time of their divorce, but also knowingly assented to opting out of its application to their case. Furthermore, to the extent that the issue of modification of the Agreement and decree entered pursuant thereto was before Judge Steinberg in 2000, he could not have ruled as he did without concluding that the Agreement was valid. The Plaintiff either litigated, or had the opportunity to litigate, the validity of the Agreement before Judge Steinberg. Principles of res judicata and/or estoppel preclude this Court from addressing an issue which either was, or could have been, litigated before Judge Steinberg. Finally, it would seem that any effort to invalidate an agreement fourteen years (as of the date of the motion) after its making would be inequitable. The parties have moved on with their lives and constructed their financial affairs in reliance upon the agreement which was made when they parted ways. At that time, they accepted the benefits conferred and burdens imposed by the Agreement. For example, the Defendant undertook responsibility for payment of any and all medical expenses incurred by the child to the extent not covered by medical insurance. Irrespective of whether those reimbursed expenses turned out to be relatively minor or significant in amount over the past fourteen years, the fact remains that the Defendant exposed himself throughout to this potentially significant expense. To now go back and undo that Agreement, after much of the risk is gone (the child turning seventeen shortly), would deprive the Defendant of the benefit of having "opted out" of the guidelines after having shouldered many of the burdens imposed by the Agreement. Indeed, it may be that the child's long-term interests would not be served by the limited relief which is available to the Plaintiff given the child's age. If the Agreement were to be invalidated for the reasons advanced by the Plaintiff, would the Defendant be extricated from his obligation to pay for the college education of the child? Simply stated, it's a bit late in the day to address the validity of the Agreement.
The fact that the parties opted out of the CSSA does not mean that the current support order cannot be modified. Indeed, the language of the CSSA in effect at the time of the Agreement specifically vested discretion in the trial court with regard to child support even when the parties opted out of the guidelines. The issue, however, is the circumstances which must be demonstrated by the Plaintiff in order to warrant a modification. The Plaintiff contends that she need merely establish a change in circumstances since the entry of the decree sufficient to warrant a modification. The Defendant claims that the standard is far more stringent.
As indicated earlier, New York law controls the disposition of this issue. Crucial to the analysis is the fact that the Agreement, while incorporated into the decree, did not merge in the decree. "It is well settled that where . . . a party seeks to modify the child support provisions of a separation agreement that has been incorporated but not merged in the judgment of divorce, he or she bears the burden of demonstrating `that the agreement was unfair or inequitable when entered into or that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the children are not being adequately met' . . . Absent such a showing, an application for an upward modification of child support will not be granted unless the separation agreement itself expressly provides for modification upon a lesser burden of proof . . ." (Citations omitted.) Langlitz v. Ochse, 268 A.D.2d 865, 865-66, 701 N.Y.S.2d 725 (3d Dept. 2000). See also Jaeger v. Jaeger, 260 A.D.2d 351, 351-52, 687 N.Y.S. 2d 689 (2d Dept. 1999) (an incorporated, but not merged, separation agreement should not be modified unless there is "a showing that the agreement was unfair or inequitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred or that the child's right to receive adequate support is not being met . . ."); Rich v. Rich, 234 A.D.2d 354, 651 N.Y.S.2d 107 (2d Dept. 1996). The New York courts have further reasoned that "[w]hen parts of a separation agreement are incorporated into but not merged within a divorce decree, the separation agreement continues in effect as a separate and independent contractual arrangement between the parties . . ." Kleila v. Kleila, 50 N.Y.2d 277, 283, 428 N.Y.S.2d 896, 406 N.E.2d 753 (1980). "[The] courts of this State enjoy only limited authority to disturb the terms of a separation agreement . . . [and] any attempt to confer upon a court of any jurisdiction within the United States broad power to modify the terms of a separation agreement might well run afoul of constitutional limitations upon the State's power to tamper with vested contractual rights." Id., 284.
This Court need not address the issue of whether the Agreement was unfair or inequitable at the time of its execution. That finding was made by the Court, Steinberg, J., when he rendered his December 2000 decision. It cannot be relitigated at this time.
The Court further notes that it is aware of nothing which would render the agreement unfair or inequitable at the time it was made nor has Plaintiff's counsel made, or attempted to make, such a showing.
The second basis which would support a modification is a showing that an unanticipated and unreasonable change of circumstance has occurred since the making of the Agreement resulting in a concomitant increased need. Plaintiff contends that modification is warranted because the Defendant's income has significantly increased and the parties could not have anticipated the magnitude of the increase in the costs of raising a child some fourteen years following the making of the Agreement. It is well settled that "[n]either the increased income of a noncustodial parent nor a generalized claim that the child's needs have increased as the child matures warrant an upward modification (see [In re] Lunman v. Lomanto, 239 A.D.2d 770, [ 657 N.Y.S.2d 479 (3d Dept. 1997)]; Rich v. Rich, [ supra] 234 A.D.2d 354; [In re] Strack v. Strack, 225 A.D.2d, 872 [ 638 N.Y.S.2d 526 (3d Dept. 1996)]." Decarlo v. DeCarlo, 250 A.D.2d 848, 848-49, 673, N.Y.S.2d 709 (2d Dept. 1998). "[T]he increased support is warranted only where the movant sets forth specific increased expenses on behalf of the child as opposed to merely a general claim that the children's needs have increased as the child matured or as a result of inflation . . ." (Citations omitted.) Owens v. Wollmers, 245 A.D.2d 380, 380-81, 665 N.Y.S.2d 682 (2d Dept. 1997). Furthermore, the Plaintiff has not demonstrated how or why Defendant's increased income over a period of fourteen years constitutes an unanticipated or unreasonable change in circumstances. She bears the burden of making such a showing. She has also failed to demonstrate that the changes in the cost of living which have occurred have had a disparate impact on her. Admittedly, it would be fair to assume that the cost of raising a child has increased over the years, but part of that increased expense has been shouldered as well by the Defendant (clothing contribution) and, in other respects, the Defendant is, or will he, bearing all of the increased expense related to certain needs of the child (medical insurance premiums, unreimbursed medical expenses and, most notably, the cost of college education for the child). In 2000, Judge Steinberg did not find an unanticipated or unreasonable change in circumstances. This Court is likewise unable to make such a finding.
It should be noted that the absence of financial affidavits from the time of the decree makes the comparison between circumstances then and circumstances now more difficult.
The Defendant should note, given the Court's ruling, that any future complaints regarding the cost of higher education are not likely to be well received.
The Court also notes that while the Defendant's visitation with the child has decreased since the matter was heard by Judge Steinberg (as a result of Defendant's relocation to Iowa), the travel cost associated with the exercise of that visitation has obviously increased to a significant degree.
The sole remaining basis for modification would be a demonstration that the needs of the child are not being met. "To establish that the children's needs are not being adequately met, a party must demonstrate `specific increases in the costs related to the child[ren's] basic necessities of food, shelter, clothing and medical and dental needs, as well as to the expenses associated with the child[ren's] varied interests and school activities' . . . [G]eneralized assertions that the children's needs have increased are insufficient to warrant a modification of the child support provision of the parties' stipulation to direct that plaintiff pay child support for the parties' children in accordance with the Child Support Standards Act . . ." (Citations omitted.) Tuchrello v. Tuchrello, 204 A.D.2d 1020, 1021, 613 N.Y.S.2d 86 (4th Dept. 1994). The Plaintiff has failed to make the requisite showing. No evidence was proffered as to any needs of the child that are not being met. To the contrary, she testified that she assumed the child's needs were being met. Her financial affidavit submitted in connection with these proceedings likewise discloses no shortfall between income and support she receives and the expenses which she incurs each week.
For all of the reasons set forth above, Plaintiff's motion is denied.
The Court notes, in closing, that its ruling derives from and is the result of applicable New York law. Had this matter been governed by the substantive law of this State, a different result might well follow.