Opinion
No. FA95-0319316 S
August 24, 2004
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court on June 11, 1996. At that time, the parties had two minor children: Jennifer, born July 15, 1982 (who has now reached her majority); and Stephanie, born March 30, 1987. The decree provided, inter alia, for a division of certain marital properties both in Connecticut and in Florida, as well as orders for weekly alimony and child support of $100 and $180, respectively. The alimony was terminable upon the normal conditions or upon the transfer by the husband to the wife of two Florida properties, whichever event occurred sooner. Also, at the time of the decree, there was found to be an arrearage in pendente lite alimony and child support in the amount of $7,549.80. Subsequent to the dissolution of marriage, the wife filed a motion for contempt alleging, inter alia, nonpayment of alimony and child support. The court made a finding of contempt on November 1, 1996.
On April 18, 1997, the wife filed another motion for contempt (# 151) and on November 25, 1997, following a lengthy hearing, this court issued a Memorandum of Decision which, inter alia, found and ordered: (1) an arrearage in alimony, child support, and other financial orders in the amount of $13,107; (2) payment on the arrearage to be made at the rate of $35 per week until July 15, 2000, $125 per week until March 30, 2005, and $225 per week thereafter until paid in full; (3) interest to run on the unpaid balance at the rate of 10 percent per annum; and (4) that alimony had terminated on October 10, 1996, upon the transfer of the husband's interest in the two Florida properties to the wife, albeit by judicial action.
In addition, the court specifically found that the husband was not in contempt at that point in time, and, moreover, it found that the wife, herself, was not in compliance with the orders of the court regarding the transfer to the husband of her interest in the real property at Kissimmee, Florida. As found by the court, that property, which produced rental income of $1,000 per month, was worth $80,000 at the time of the dissolution, that it had no mortgage, and that the wife's actions in connection with the transfer of her interest resulted in a significant financial loss. (See Memorandum of Decision dated April 26, 2004). At the time of the hearing, both parties had been represented by counsel.
The following year, the action was once again before the court. On May 18, 1998, the wife filed a citation for contempt, for which in-hand service was ordered, and a court date of July 6, 1998 was assigned for a hearing. The pleading was returned to court as "unserved." The wife, again, filed a similar motion (# 156) dated July 13, 1998, in which personal service was ordered, and a new date of September 8, 1998 set for a hearing. The file indicates that the husband was personally served on September 1, 1998. On September 8, 1998, the husband, through counsel, moved for a continuance until October 19 so as to ascertain the results of the Florida litigation regarding the Kissimmee property, the trial of which was scheduled for October 7. The motion was denied. The Florida case was, in fact, subsequently resolved, under the terms of which, the husband told the court on May 5, 2004, he waived any further claim in and to the real property. In his words, he "walked away from it." The court proceeded with the hearing in the absence of the husband (although his counsel was present), and found the husband in contempt, issued a capias, set the arrearage at $27,608.70, and set an appearance bond in the amount of $30,000.
At some point, the capias was lost, and upon the filing of an affidavit (#159) the capias was reissued on July 3, 2000, and the appearance bond remained at $30,000. The husband was arrested pursuant to the capias on September 12, 2002, and brought to this court, at which time he was committed to the custody of the Commissioner of Corrections, the bond set at $30,000, and the matter continued to the family support magistrate's docket on September 18, 2002. At that time, the family support magistrate ordered the husband's continued incarceration, left the appearance bond in place in the amount of $30,000 (despite the fact that he was now in custody), and placed a purge amount on the file of approximately $65,000, not coincidently, the then amount of the arrearage as calculated by the State of Connecticut.
The husband remained incarcerated for the next sixteen months, until January 12, 2004, unable to meet either the appearance bond or the purge amount. Like a troublesome schoolboy being passed from grade to grade, he was routinely brought before the family support magistrate for a "review" and, just as routinely, he was remanded to prison. However, that does not get the child support paid.
Inexplicably, he made no written motion for modification, however, on March 5, 2003, he filed a motion for contempt, citing the wife's failure to abide by the terms of the judgment. The motion was scheduled for a hearing on May 5, 2003. On May 14, 2003, through counsel, he made a motion for release from incarceration (#172), citing the violation of his constitutional rights. The former was apparently never acted upon, and the latter was denied.
The matter came to the attention of this court on or about December 15, 2003. At that time, the court indicated that it saw a major problem, and it gave the State of Connecticut and counsel a short time to address the issue of the husband's lengthy incarceration, hopefully prior to Christmas. Nothing significant occurred, and, as the initial order was entered in the Superior Court, the court transferred the case back to the Superior Court pursuant to General Statutes § 46b-231(q). In so doing, the court vacated the capias, the finding of contempt, and the finding of an arrearage. Perhaps of more significance the court suspended the payment of the husband's child support obligation and ordered his release on his own recognizance. He has since entered a pro se appearance and has appeared in court voluntarily. The State of Connecticut has appealed the decision of the court to transfer the case from the family support magistrate docket. The appeal is currently pending.
THE COURT: "We've got a gentleman who's been incarcerated an extraordinarily long time, too long, in my opinion. I think that we need to focus on what's important here. And what's important is, how is he to pay child support? How does he work on his arrearages if he's incarcerated? . . . So somehow, Mr. Pritchard has to come out of jail in order to work, in order to work down whatever that arrearage is. And I would like everybody, especially in light of this season, to give some thought to how we could come up with something creative to satisfy the State, perhaps in part, and to see that this gentleman is out, and in the work force . . . I frankly, frankly am offended, as a citizen [and] as a constitutional officer, that this gentleman has stayed in jail, and this problem has not been solved in all this time. It's wrong. It's wrong, and if it is not addressed, and it is not dealt with between now and a month from now when I get these briefs, I will . . . reconvene this hearing, and I will do something that I believe is appropriate. But I leave it to the good offices of the State, and Mr. Brennen, and whoever's involved with this case, to see that justice and right is done to everybody. Including the children, including the former Mrs. Pritchard, and to Mr. Pritchard . . ." Transcript, December 15, 2003, pp. 2-4.
General Statutes § 46b-231(q): "Order issued by Superior Court supersedes previous orders. When an order for child or spousal support has been entered against an obligor by the Superior Court in an action originating in the Superior Court, such order shall supersede any previous order for child or spousal support against such obligor entered by a family support magistrate and shall also supersede any previous agreement for support executed by such obligor and filed with the Family Support Magistrate Division."
The case has since taken many interesting twists and turns. In many respects, it is a case of far too many missed opportunities. At some point, the State of Connecticut, acting for the wife, in what has become a Title IVD matter, instituted an action alleging a fraudulent conveyance regarding a commercial property in Bethel, Connecticut, owned by the husband at the time of the dissolution of marriage. Following a hearing, this court issued a Memorandum of Decision dated April 26, 2004, finding that, in fact, a fraudulent conveyance had occurred, but stayed any enforcement of any lien until such time it was able to render a decision on the current arrearage. Without a wholesale reiteration of the underlying facts in that case, the parties are directed to that Memorandum of Decision for a more detailed version of any additional relevant facts in this matter.
FINDINGS
Based upon the testimony and evidence, the court makes the following findings:
1. Although the issues of property division, alimony, and support are inextricably entwined, the focus of the court in this Memorandum of Decision is a determination of the current arrearage. For reasons which shall become clear, the court has taken for a baseline the financial orders of the court dated November 25, 1997, as well as the arrearage determined on that date (i.e., $13,107.95). The court also finds that the arrearage includes the sum of $1,700, which represents alimony owed for the period June 11, 1996 to October 10, 1996 (i.e., 17 weeks @ $100).
2. That the jointly owned real property located at 8844 Parliament Court, Kissimmee, Florida, was sold at public auction on December 30, 1996.
3. That the sale of the Kissimmee, Florida property not only resulted in the loss to the husband of income producing property, but also the loss of at least $40,000 in equity therein; that the evidence supports a finding that the actions of the wife played a significant role therein; and that the husband's ability to meet his child support obligation, including the outstanding arrearage, was substantially impaired thereby.
4. That other than any outstanding arrearage, the husband's alimony obligation ceased as of October 10, 1996, with the transfer of title of the two Florida properties to the wife by judicial action.
5. That the provisions of General Statutes § 46b-56c do not apply since the date of the initial support order was prior to October 1, 2002.
6. That the provisions of General Statutes § 46b-84(b) do apply since the date of the original decree was after July 1, 1994.
7. That the oldest child, Jennifer (born July 15, 1982), reached the age of 19 on July 15, 2001, and which event the court finds to be a substantial change of circumstances. Kennedy v. Kennedy, 177 Conn. 47, 52-53 (1979).
8. That under all the facts and circumstances of this case, including the length and genesis of his incarceration, the incarceration of the husband on September 12, 2002 was a substantial change of circumstances.
9. That the husband's release from incarceration on January 12, 2004 was a substantial change of circumstances.
10. That based upon the testimony before the court regarding the health, length of incarceration, and work experience of the husband, it is equitable and appropriate to consider the earning capacity of the husband in making its orders regarding alimony; Hart v. Hart, 19 Conn.App. 91, 94-95 (1989); and to impute to him an earning capacity in a minimum amount of $10,712 per annum, based upon the federal minimum wage of $5.15 per hour paid over a forty-hour work week; and that his approximate net annual income is $9,672 for purposes of calculating child support under the Child Support Guidelines.
ISSUES
In arriving at a finding of the current arrearage, it is essential for the court to answer certain questions:
1. Was the order of this court, dated September 8, 1998, finding the husband in contempt and making a determination of an arrearage a valid order?
2. Was the lengthy incarceration of the husband an extraordinary event and/or a substantial change of circumstances that should be taken into consideration by the court in modifying the existing orders and in its determination of a current arrearage?
3. Is the husband entitled to a credit for any sums owed on the existing arrearage, which includes alimony and child support, as a result of the actions of the wife in relation to the loss of the equity in the Kissimmee, Florida, property? If so, how much; if not, can the court take into consideration all of the facts and circumstances of this case, including the actions of the wife, in fashioning an appropriate order?
LAW WAS THERE A LEGAL BASIS FOR THE FINDING OF CONTEMPT:
Civil contempt, as opposed to criminal contempt, lies in cases where a party to an action is in willful breach of one or more provisions of a court order without sufficient justification. Eldridge v. Eldridge, 244 Conn. 523 (1998). Because the remedy for such a breach can include incarceration, certain legal, constitutional safeguards must be preserved. There is a set procedure set forth in the Connecticut Practice Book § 25-27, and in situations where incarceration is likely, that party is entitled to have an attorney present. Moreover, if he or she cannot afford one, the services of an attorney must be provided by the court, if only during that contempt proceeding. Connecticut Practice Book § 25-63.
U.S. Constitution, Article IV, § 1 — ". . . nor shall any State deprive any person of life, liberty, or property, without due process . . ."
Recent Appellate Court decisions provide a clear roadmap for courts to follow in such cases. First and foremost, the party must be given fair notice and an opportunity to be heard. Failure to do so is a denial of due process. Shapiro v. Shapiro, 80 Conn.App. 565 (2003). "A finding of contempt is a question of fact . . . To constitute contempt, a party's conduct must be wilful . . . (Internal quotation marks omitted.) Noncompliance alone will not support a judgment of contempt." Behrns v. Behrns, 80 Conn.App. 286, 289 (2003), cert. denied, 267 Conn. 914 (2004); Prial v. Prial, 67 Conn.App. 7, 14 (2001). "A finding of contempt `must be established by sufficient proof that is premised upon competent evidence presented to the trial court . . .'" Sheppard v. Sheppard, 80 Conn.App. 202, 219 (2003); Detels v. Detels, 79 Conn.App. 467, 470 (2003).
In the Sheppard case, the Appellate Court reversed the trial court's finding of contempt, where the husband had a legitimate, but ultimately unsuccessful, dispute with the wife regarding responsibility for the cost of certain medicines. Not unlike that case, Mr. Pritchard has had a longstanding dispute with his former wife regarding the loss of the Florida real estate. As was found by this court in the previous hearing, he had a good faith, but mistaken belief that the transfer of the Florida property wiped the child support slate clean. The trial judge recognized the issue in November of 1997 when he specifically declined to find Mr. Pritchard in contempt. This was all detailed in a lengthy Memorandum of Decision as on file.
In fact, at the time that he was found in contempt and the capias was first issued, the husband had, through counsel, requested a continuance pending the resolution of a related lawsuit in Florida, which, if nothing else, the results of which would have been important for the court to consider in making a determination of the good faith of the husband It was denied. Although the granting of a continuance is within the sound discretion of the court, absent a showing of prejudice, fundamental fairness would seem to dictate that the short continuance requested in order to obtain otherwise unavailable evidence, particularly where a person's liberty is in jeopardy, should well have been granted instead. A similar principle was enunciated in the recent case of Robelle-Pyke v. Robelle-Pyke, 81 Conn.App. 817, 823-24 (2004) (Party sought a continuance to secure expert testimony regarding her medical condition, which the court was required to consider as one of the statutory factors under General Statutes § 46b-81 and § 46b-82. It was denied, and the trial court was reversed on appeal.). There, the court enunciated the principle that, "a party should be entitled to present evidence relevant to an issue to be determined by the court." Robelle-Pyke, supra at 824. Moreover, where, as here, "if the denial of a continuance is directly linked to a constitutional right, then due process rights are implicated, and the claim is of constitutional magnitude." Foster v. Foster, 84 Conn.App. 311, 317 (2004); In re Shaquanna M., 61 Conn.App. 592, 602 (2001).
To deprive a man of his liberty without due process violates the hallowed principles of the United States Constitution, even if the deprivation of liberty comes about in pursuit of the very legitimate aim, such as the collection of child support. The end very definitely does not justify the means. There is no inherent conflict between the enforcement of a current child support order or the collection of an arrearage and the application of the principles of due process. It is particularly troublesome to this court when the continued deprivation of liberty comes about during the course of a judicial process (i.e., a Title IVD collection case) in which an agency of the State of Connecticut which presented the case and the judicial officer who presided both failed to accord due process, not once, but repeatedly and routinely. It is even more troublesome that the constitutional issue was placed squarely before the family support magistrate by motion dated May 14, 2003, and that it was denied.
On December 15, 2003, this court expressed its concerns regarding the continued incarceration of the husband due to his failure to pay the accumulated arrearage. These concerns were not addressed by either the attorney general or the family support magistrate. This court had no other choice but to intervene. Had the court been presented with an appeal from the decision of the family support magistrate, the General Statutes empower a judge of the Superior Court reverse or modify that decision, "if the substantial rights of the appellant have been prejudiced," where the decision is, inter alia, "in violation of constitutional or statutory provisions." General Statutes § 46b-231(n)(7). The court should do no less under the circumstances of this case.
Contempt is a power to be used sparingly and with discretion, and routine incarceration moves inexorably from coercion to punishment to oppression. The Connecticut Practice Book is very clear that in the case of civil contempt a person cannot be incarcerated for longer than thirty days unless at the end of that period he is brought back to court and "given the opportunity to purge himself." In addition, the court is given the power to remand the person to custody, or to " modify the order if the interests of justice so dictate." (Emphasis added.) Connecticut Practice Book § 25-63(b). These are not idle words. They call for a meaningful opportunity to be heard, and they give the court wide latitude to address the unique circumstances of each case. These rules are promulgated by the judges of the Superior Court to ensure the fair and efficient administration of justice. They apply equally to family support magistrates. Connecticut Practice Book § 25-65(a).
Routine incarceration also diminishes the effectiveness of the tool itself, as well as respect for the judicial process. Routine incarceration chips away at the bundle of rights and liberties which all citizens share — to deny one man his rights places all men's rights in jeopardy. John Donne eloquently expressed a similar sentiment, when he said that "any man's death diminishes me." Government exists by the will of the people to serve the people. It is the people who have entrusted the government with that function. We are, after all, a government of laws and not men.
John Donne (1572-1631), Devotion XVII.
Too often appearance bonds and purge amounts bear no reasonable relation to their intended purposes. The former should only be set in an amount sufficient, in the judgment of the court, under all the circumstances, to assure the obligor's appearance at the next court date. To arbitrarily tie the appearance bond to the amount owed, without anything more, is, at best, a shortcut, and at all events wrong. Likewise, a purge amount must be set in an amount which bears a reasonable relation to the amount a person is likely to be able to produce by the date and time set by the court. As has been said many times, in cases of contempt, the court should give the contemnor the "keys to the jail." In other words, he must be given a reasonable opportunity to comply with the court order and thus avoid incarceration. A purge amount is not to be constantly hung like the proverbial "Sword of Damocles" over the obligor's head, with the result of failure being certain incarceration. This confuses heavy-handed coercion with a judicious effort to collect an arrearage. While it is theoretically possible that in some circumstances both the arrearage and the purge figure numbers could be the same, that is generally not the case where one takes the time to consider all of the facts and circumstances.
Family support magistrates are called upon to perform a very important and difficult task, often under less than ideal conditions. However, sheer size or volume of the family support magistrate docket is no excuse; pressure to increase collections is no excuse. Moreover, merely "shaking the tree" to see what falls out is patently abusive.
A family support magistrate is not a collection agent for the State of Connecticut; that task falls to the support enforcement officers. Rather, he or she is a judicial officer who is called upon to perform his or her functions with respect for the rights of all parties, including the obligor, with a reverence for the supreme law of the land, and with a willingness to exercise discretion where appropriate, within the statutory framework. It has been frequently stated by the Connecticut Supreme Court and the Appellate Court that "a judge is not a mere umpire in a forensic encounter but a minister of justice." Peiter v. Degenring, 136 Conn. 331, 338 (1949); Strong v. Carrier, 16 Conn. 262, 263 (1933); Bank of Boston v. DeGroff, 31 Conn.App. 253, 257 (1993).
We need to keep child support obligors engaged in the process, a virtual impossibility when they remain incarcerated for lengthy periods of time. More important, large arrearages accumulated by persons who are incarcerated are an impediment to the establishment and/or maintenance of a parent-child relationship. No doubt, the threat of arrest with the issuance of the capias and the large arrearage found by the court in September 1998 was a factor in the husband's failure to deal with the problem. So it festered for two years — two lost years. This fact has been recognized by our state legislature in what is commonly referred to as the "fatherhood initiative," most recently, with the passage of Public Act 03-258. In a sad footnote to the present case, during the pendency of the dissolution action and particularly during his incarceration, the husband became estranged from his two daughters — an incalculable loss both for them and for him. The loss of the society of one's children, even on a temporary basis, is so important that it is considered an appealable issue by our courts. Madigan v. Madigan, 224 Conn. 749, 756-57 (1993). In that case, the court adopted the reasoning of counsel that "[a] lost opportunity to spend significant time with one's child cannot be replaced by a subsequent order of custody." As a consequence, the court found that temporary custody orders are immediately appealable, because that "is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected." (Emphasis added.)
"Sec. 4. (NEW) (Effective October 1, 2003) Notwithstanding any provisions 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 in accordance with the child support guidelines established pursuant to section 46b-215a of the general statutes." (Emphasis added.)
Where an order finding a party in contempt was entered and that party has purged himself of the contempt, the court has the power to vacate the order. Likewise, where, as here, the original court order did not comport with the fundamentals of due process as articulated by the Appellate Court, the appropriate remedy is to vacate that finding and any related orders and to fashion appropriate relief under all the circumstances. For the foregoing reasons, the court hereby confirms its order of January 12, 2004, opening the judgment of the court and vacating the earlier finding of contempt, the capias, and the finding of an arrearage as of September 8, 1998.
IS THERE A BASIS FOR A RETROACTIVE MODIFICATION OF THE FINANCIAL ORDERS
If any case cries out for equity, it is this case. "[T]he power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute." (Citation omitted; internal quotation marks omitted.) Porter v. Porter, 61 Conn.App. 791, 797 (2001). However, the jurisdiction or power of the court to act in family matters, of which this is clearly one, is derived from General Statutes § 46b-1. And even though the court has the jurisdiction, it can only exercise that power, legal or equitable, within that statutory framework. Amodio v. Amodio, 247 Conn. 724, 729-30 (1999).
Under General Statutes § 46b-86, unless the decree itself precludes modification, an alimony and/or child support order can be modified where there has been a substantial change of circumstances since the date of the last order, or where there is a substantial deviation from the child support guidelines. Borkowski v. Borkowski, 228 Conn. 729, 734 (1994). "`Inability to pay' does not automatically entitle a party to a decrease of an alimony order. It must be excusable and not brought about by the defendant's own fault." Sanchione v. Sanchione, 173 Conn. 397, 407 (1977). Moreover, the court may " consider the causes for a party's substantial change of circumstances." (Emphasis added.) Borkowski, supra at 743.
In general, under General Statutes § 46b-86(a), a retroactive modification of an order for "periodic payment of permanent alimony or support" is not permitted unless there is a motion pending and there was service of the motion in accordance with General Statutes § 52-50. Shedrick v. Shedrick, 32 Conn.App. 147 (1993). Unless the two prongs of the test are met, a modification is effective as of the date the motion is heard. Sanchione, supra 406. For whatever reason, no motion for modification per se was ever filed by the husband following September 12, 1998. He did, however, file a pro se motion for contempt, dated March 5, 2003, citing the wife's failure to comply with the original orders of the court regarding the transfer of the Florida properties. Since the husband was not represented by counsel for much of the proceedings and because contempt and modification are two sides of the same coin, this court looks at the practical effect of the motion which is to bring the ultimate issue before the court. Jaser v. Jaser, 37 Conn.App. 194, 202 (1995). The husband has consistently contended that the loss of the Florida real estate was somehow tied to his child support obligation, which he believed to be satisfied. The court therefore further finds that the filing of the motion for contempt satisfies the first prong of General Statutes § 46b-86(a), and that it is equitable and appropriate to treat the motion as one to reopen the judgment of the court dated September 8, 1998, vacate the finding of contempt and other orders, and to modify the existing child support order, effective September 12, 2002.
The court finds support for this position in the fact 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, under all the facts and circumstances of this case, in particular, the fact that the husband was imprisoned by the State of Connecticut, the length of his incarceration and the fact that the matter was prosecuted as a Title IVD case with an appearance by the Assistant Attorney General, the court further finds that it is equitable and appropriate to consider constructive notice having been given to the State of Connecticut and to its agents, the support enforcement officer and the Office of the Attorney General. The Appellate Court observed that the purpose of the notice requirement preserves "the due process rights of individual obligors . . ." Shedrick, supra, 151. While this court believes that the same due process rights are accorded obligees, it would be ironic, indeed, if the latter stood upon its own due process rights while at the same time denying the same to the former.
As this court has already observed, this is a case of missed opportunities, and both sides had at least sixteen months to get it right. Accordingly, the court considers it equitable and appropriate to modify the existing orders retroactive to September 12, 2002, the date of the substantial change of circumstances due to the incarceration of the husband The court takes this step cognizant of the fact that 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; and that this is a clear statement of public policy. Furthermore, the court, cognizant of the independent rights of minor children, does not treat lightly the modification of an existing order for child support order which could be construed as retroactive. Guille v. Guille, 196 Conn. 260 (1985). However, where the underpinning for the order, at least as far back as September 8, 1998, is a failure to accord due process to the obligor, the statute must give way to the U.S. Constitution. The court has attempted to fashion an order which strikes a proper balance.
IS THE OBLIGOR ENTITLED TO LEGAL OR EQUITABLE RELIEF
Consistent with its finding herein, a portion of the arrearage, as found by this court, on November 25, 1997, amounting to the sum of $1,700, is attributable to the past due alimony, this court has considered, as a matter of equity, based upon the actions of the wife regarding the loss of the Florida property, allowing the husband a credit in that amount to be taken against the arrearage found by this court on November 25, 1997. However, the Connecticut Supreme Court has held such to be an impermissible retroactive modification where a trial court applied just such a remedy. Darak v. Darak, 210 Conn. 462, 497 (1989). While this court might well distinguish the facts of this case from those of Darak (e.g., there is no current order for the payment of alimony which ceased in 1996), to do so would, under all the facts and circumstances, exceed its statutory authority and amount to a retroactive modification.
However, the court is not without a remedy. In a case where the court found a substantial alimony arrearage postjudgment, it ordered the payor to satisfy the balance at the nominal rate of $5 per week. In arriving at this order, the court took into consideration the fact that the arrearage had accumulated over a period of eight years with the acquiescence of the payee. The Connecticut Supreme Court held that the court "has discretion respecting the manner in which [an arrearage is] paid," and that the nominal order did not amount to a retroactive modification. Moore v. Moore, 187 Conn. 589, 590 (1982). In the present case, the court finds it to be equitable and appropriate to exercise such discretion, taking into consideration the circumstances of the husband's incarceration as well as the actions of the wife regarding the loss of the Kissimmee, Florida property, both of which have had a direct effect upon the accumulation of the arrearage, and, more important, the husband's ability to satisfy it.
FURTHER FINDINGS AND ORDERS RE CHILD SUPPORT AND ARREARAGE
For purposes of this case, in arriving at its calculation, the court divides the case into four distinct periods: (1) November 25, 1997 to July 15, 2000 ("First Period"); (2) July 15, 2000 to September 12, 2002 ("Second Period"); (3) September 12, 2003 to January 12, 2004 ("Third Period"); and (4) January 12, 2004 to present ("Fourth Period").
First Period
This period covers a total of 137 weeks. The original decree, as modified by this court on November 25, 1997, is still in full force and effect. Using this order as the baseline, the court finds that there is due and owing child support, calculated as follows: $180 per week × 137 weeks = $24,660. There was no evidence of any payment and, therefore, initial arrearage was $13,107.95, and adding thereto simple interest at the rate of 10 per cent per annum ($25.21 per week × 137 weeks = $3,453.77), for a total arrearage as of July 15, 2000 in the amount of $41,221.72.
Second Period
This period covers a total of 112 weeks commencing with July 16, 2000, the 18th birthday of Jennifer. Child support would be reduced. The court has based its finding on the initial order of the court and the child support guidelines effective June 1, 1994, and finds that there is due and owing child support calculated as follows: $109 per week × 112 weeks = $12,208. There was no evidence of any payment on the initial arrearage and, therefore, adding thereto simple interest on the initial arrearage at the rate of 10 percent per annum ($25.21 per week × 112 weeks = $2,823.52), for a total cumulative arrearage as of September 12, 2002, is $56,253.24.
Third Period
This period covers a total of 69 weeks commencing with the husband's incarceration on September 12, 2002. The court finds that the husband's incarceration constituted a substantial change of circumstances which warrants a modification, which shall include the elimination of the obligation to pay interest on the outstanding arrearage, as well as the timing and payment thereof. The court further finds that the husband had no income or earning capacity during this period, and the child support should be adjusted accordingly. There was no evidence of any payments either toward the child support or toward the arrearage. Accordingly, the court enters an order for the minimum child support called for under the child support guidelines of $1 per week × 69 weeks, for a total of $69. The beginning arrearage at that point was $56,253.24, and adding thereto $69, the total cumulative arrearage as of January 12, 2004, is $56,322.24.
Fourth Period
This period covers a total of 32 weeks. The court suspended the husband's obligation to pay child support until further order, however, it indicated to him that the obligation would continue to accrue, but at a rate to be determined by the court. While the court wanted to give the husband an opportunity to readjust and find employment. Based upon the testimony of the husband, the court finds that there was sufficient evidence regarding his skills and experience and that there were no impediments to his obtaining some kind of employment, even at federal minimum wage. Accordingly, for this period, the court finds that the husband has an earning capacity of $5.15 per hour for a forty-hour week. The court further finds that his imputed net income is $9,672 per annum, and it has fashioned a child support order based upon that number, and that the basic child support obligation is $37 per week. The court finds that there is due and owing child support for the period, calculated as follows: $37 per week × 32 weeks = $1,184. There was no evidence of any payment and, therefore, the cumulative arrearage as of January 12, 2004, was $56,322.24, and that the total cumulative arrearage as of the date of this order is $57,506.24.
IT IS THE FURTHER ORDER OF THE COURT that the first $20,000 of the outstanding arrearage be paid within six (6) months of the date of this order, and the enforcement of any lien is HEREBY FURTHER STAYED during said time unless said stay shall be extended by further order of this court, during which additional time period, the stay shall also be extended, in order to give the husband a reasonable opportunity to dispose of the Bethel property in an arm's-length sale. Commencing September 1, 2004, the balance of the arrearage shall be repaid at the rate of $10 per month until same shall be paid in full.
A contingent wage withholding order is entered to secure the payment of the child support order.
THE COURT
SHAY, J.