Opinion
LLIFA104009253S
05-18-2017
Jennifer M. Rogers v. Marc J. Rogers
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO MODIFY CHILD SUPPORT (#190), DEFENDANT'S MOTION TO MODIFY CHILD SUPPORT (#211), AND PLAINTIFF'S MOTION FOR CONTEMPT, FOR FURTHER ORDERS AND FOR ATTORNEYS FEES--POST JUDGMENT (#215)
Hon. John D. Moore.
On December 28, 2015, the plaintiff, Jennifer M. Rogers, now known as Jennifer M. Linskey (plaintiff or mother), filed a motion to modify child support upward (#190). This court, Pickard, J., conducted a hearing on motion #190 on February 18, 2016. At the conclusion of the plaintiff's case, then-counsel for the defendant, Marc J. Rogers (defendant or father), moved to dismiss motion #190 for failure to establish a prima facie case, pursuant to Practice Book § 15-8. The court denied this motion, and held that the defendant should be given an opportunity to present evidence in opposition to #190. As a result, the court ordered the parties to contact the case flow coordinator to arrange for a continued hearing date (#200). The defendant moved to reargue the court's decision, (#201), and the plaintiff objected thereto (#202). The court denied the motion to reargue on April 1, 2016 . In case flow request #204, on July 15, 2016, the parties requested a continuation of the February 18, 2016 hearing in front of Judge Pickard on three dates in September 2016. Judge Pickard denied the case flow request on July 18, 2016 because he was not available on the three dates selected in September, and the court file reflected the notation, " may not need to be Judge Pickard." In case flow request #205, filed on August 31, 2016, the parties requested a status conference in an effort to schedule the continued hearing on motion #190. Judge Danaher presided over a status conference on September 12, 2016. After the status conference, Judge Danaher issued an order setting down deadlines for production of documents and depositions (#206). The order also required the parties to advise the case flow coordinator on or before October 7, 2016 as to whether the parties felt a continuation of the evidentiary hearing on motion #190 was necessary. Prior to a date being set for the continuation of this hearing, however, other motion practice sprang up.
On September 22, 2016, the defendant filed a motion to modify child support downward (#211). On the same date, the defendant filed a motion for protective order concerning the deposition and discovery issues (#207). On September 26, 2016, the defendant filed an appearance in addition to counsel. On that same date, the defendant filed an emergency ex parte application for custody (#209). On October 7, 2016, the plaintiff filed a motion for contempt, for further orders and for attorneys fees (#215). The defendant then filed an appearance in lieu of counsel on November 18, 2016.
As a result of all this activity, the hearing on motion #190 was not continued before Judge Pickard, but, rather, was begun anew in front of this court. Joined with this motion at the time of this hearing were, inter alia, motions ##211 and 215.
The court conducted hearings on motions #190, 211, and 215 on December 13, 2016 and January 24, 2017. Because the parties never scheduled the continuation of the hearing of motion #190, the court began the hearing on motion #190 de novo. For the reasons set forth below, the court denies the plaintiff's motion to modify, #190, grants the defendant's motion to modify, #211, reducing the defendant's child support to $67 per week, but only from the date of this memorandum of decision, and grants that portion of the plaintiff's motion for contempt, #215, pertaining to the defendant's failure to pay child support beginning in August 2016. As a result of the defendant's contempt, the court awards the plaintiff the sum of $3,323.37 for child support arrearages, to be paid as discussed below. Additionally, after counsel for the plaintiff files an affidavit specifically pertaining to the time she expended on the issue of the defendant's failure to pay child support, as claimed in motion #215, the court will determine an award of attorneys fees to plaintiff's counsel for motion #215.
The plaintiff, during these hearings and during a hearing on January 30, 2017, also requested the court to award attorneys fees to her, arising from the defendant's filing of #209, an application for emergency ex parte order of custody and of #210, a motion for modification of custody. The court took evidence on the issue of whether it should award attorneys fees as a result of application #209 and motion #210 (which filings were ultimately not pursued by the defendant), during the January 24, 2017 and January 30, 2017 hearings. Upon reviewing the file after the conclusion of the hearings, however, the court could not locate a written motion seeking such attorneys fees. Although plaintiff's counsel told the court that she had reserved her rights to seek attorneys fees on the record, the court could not locate a motion on file that would have given notice, in writing, to the defendant of this claim and of the relief sought by the plaintiff. While paragraph 4 of motion #215 refers to the defendant filing application #209 " which was denied and a DCF report was made within hours of the defendant's wife being called to give financial testimony in this case, " the request for attorneys fees in motion #215 refers to fees for " the necessity of bringing this motion, " the gravamen of which deals with failure to make child support payments, and to cooperate with ordered parenting programs. The only express request for fees specifically arising from application #209 and motion #210, and the withdrawal thereof, was found in the plaintiff's proposed orders, #228, as supported by plaintiff's counsel's affidavit, #230. The court, therefore, will not resolve the issue of these claimed attorneys fees in this memorandum of decision. However, because the court has already taken testimony and heard argument on this issue, the court will entertain a written motion for such attorneys fees if one were to be filed in the future. The court will also afford the defendant further argument on such a motion if it is filed and if the defendant seeks further argument.
Other motions, already decided, were also heard on these dates.
The greater majority of the evidence adduced at the hearing pertained to the competing motions to modify child support, the plaintiff's motion #190, which sought an increase in child support, and the defendant's #211, which sought a decrease in child support. The court, therefore, will consider these two motions first.
I. THE TWO MOTIONS TO MODIFY CHILD SUPPORT
The plaintiff's motion #190 recited that the operative order of child support was the agreement of May 5, 2014, pursuant to which the defendant paid $80 per week in child support. Motion #190 noted that the May 5, 2014 agreement stated that it was modifiable on the basis of any change in income. Motion #190 sought child support from the defendant " in accordance with the Connecticut child support guidelines based upon the increased income for the defendant." In light of the claimed increase in the defendant's income, #190 also sought " an order allocating unreimbursed medical costs, extracurricular activities costs and dependency exemptions." The court interprets motion #190 as seeking an upward modification of the defendant's child support obligations under both a theory of a substantial change of circumstances and also under a claimed deviation from the child support guidelines.
The defendant's motion #211 recited that the parties participate in a " shared parenting plan" for the minor children and that there is currently an order in effect whereby the defendant pays the plaintiff child support. Motion #211 posited that the defendant was then out of work and receiving workers' compensation benefits. Relying on this " substantial change of circumstances" since the last order of child support, the defendant sought a reduction or elimination of his child support obligation.
Connecticut law is clear as to the manner in which a party may establish a basis upon which the court may modify an order of child support. Our Appellate Court has, additionally, quite recently, clarified the prerequisites for deviation from the guidelines in a determination of child support.
" General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment . . . Section 46b-86(a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is either (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines." (Citations omitted; footnote omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn.App. 482, 491-92, 934 A.2d 306 (2007). Both of these bases for modification of a child support order " establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole, as reflected in the mandatory periodic revisions of the child support guidelines." (Internal quotation marks omitted.) Mullin v. Mullin, 28 Conn.App. 632, 635, 612 A.2d 796 (1992). The court shall now review each of these two potential bases separately.
When proceeding under a claim of substantial change in circumstances, the movant " bears the burden of showing the existence of a substantial change in the circumstances." (Internal quotation marks omitted.) Santoro v. Santoro, 70 Conn.App. 212, 218-19, 797 A.2d 592 (2002). More specifically, " [a] party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper." Savage v. Savage, 25 Conn.App. 693, 696, 596 A.2d 23 (1991). Although the trial court does not possess " the power to retry issues already decided . . . or to allow the parties to use a motion to modify as an appeal"; (Citation omitted.) Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994); the court may, after it has found a " substantial change in circumstances, " consider the evidence of the changed circumstances in structuring the modification orders. Kalinowski v. Kropelnicki, 92 Conn.App. 344, 350, 885 A.2d 194 (2005). The court's " inquiry, then, is limited to a comparison between the current conditions and the last court order." (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn.App. 87, 92, 699 A.2d 1029 (1997).
Modification of child support under a claimed deviation from the child support guidelines involves a different set of considerations. Two legal presumptions apply to a claim for modification of child support due to deviation from the guidelines.
The first presumption pertains to the operation of the child support guidelines. The child support guidelines are intended, by operation of statute, to determine an order of child support, unless an exception applies. " General Statutes § 46b-215b provides that the child support guidelines shall be considered in all determinations of child support amounts." McHugh v. McHugh, 27 Conn.App. 724, 727, 609 A.2d 250 (1992). Section 46b-215b creates a " rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered." (Internal quotation marks omitted.) Id., 728. To rebut this presumption, the court must make a " specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a . . ." (Internal quotation marks omitted.) Mullin v. Mullin, supra, 28 Conn.App. 636-37. " [U]nless there is [such a] specific finding on the record that would allow the presumption to be rebutted, child support awarded must be in the amount provided by the guidelines." Savage v. Savage, supra, 25 Conn.App. 698.
The bases for deviation are set forth in Regs., Conn. State Agencies § 46b-215a-5c, " Deviation criteria."
The second presumption relates to what constitutes a substantial deviation from the guidelines. Because of the necessity of considering the application of the child support guidelines, when a party moves to modify a child support order claiming a substantial deviation from the child support guidelines, the court must " calculate the guideline support amount to determine if the final order, or prior order, is at least 15 percent higher or lower than the guideline indicated amount." Weinstein v. Weinstein, supra, 104 Conn.App. 496. This is because § 46b-86 provides that " [t]here shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial." (Internal quotation marks omitted.) Mullin v. Mullin, supra, 28 Conn.App. 636. There is, however, an exception to this broad rule. " [O]nce the court enters an order of child support that substantially deviates from the guidelines, and makes a specific finding that the application of the amount contained in the guidelines would be inequitable or inappropriate, as determined by the application of the deviation criteria established in the guidelines, that particular order is no longer modifiable solely on the ground that it substantially deviates from the guidelines." (Emphasis in original; internal quotation marks omitted.) Weinstein v. Weinstein, supra, 104 Conn.App. 496.
As mentioned, our Appellate Court has, quite recently, put a finer point on the requirement of a specific finding that the guidelines recommendation would be inequitable or inappropriate. In Righi v. Righi, 172 Conn.App. 427 (April 25, 2017), the Appellate Court made it abundantly clear that, before deviating from the guidelines on child support, the trial court must make a specific finding on the record that " application of such guidelines would be inequitable or inappropriate." Id., 437. In so holding, the Appellate Court rejected an argument that such a finding was necessarily implied when the trial court found that a deviation from the guidelines, even one supported by a reference to the deviation criteria, was " fair and reasonable." (Internal quotation marks omitted.) Id., 435.
As noted above, the defendant has moved to modify his child support obligation downward because of a claimed substantial decrease in income. Under Crowley, in order to decide that motion, the court must compare the conditions at this time to the conditions at the time of the last order of child support. Crowley v. Crowley, supra, 46 Conn.App. 92.
The plaintiff, however, is moving to modify the defendant's child support upward based on two arguments. While claiming that the last order allowed a modification of child support when financial circumstances changed, the plaintiff also moved for an increase in child support based upon a deviation from the guidelines. In order to decide the plaintiff's motion to modify, the court must begin by reviewing all past orders of child support, including the financial conditions of each party at the time of each order, as well as the manner in which these orders were entered. The court must do so because each of the previous orders of child support, as explained in greater detail below, substantially deviated from the guidelines. The court must investigate whether, under Righi, the trial court, at any time in the past, made a specific finding that application of the guidelines would be inequitable or inappropriate.
The court finds the following facts and reaches the following conclusions of law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. CREDIBILITY CONSIDERATIONS
These motions were tried to the court. " It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony." (Internal quotation marks omitted.) Blasco v. Commercial Linens, LLC, 133 Conn.App. 706, 709, 36 A.3d 737 (2012). The role of the trier of fact is to assess the credibility of the witnesses on the basis of its firsthand observation of the witnesses' conduct, demeanor and attitude. See Cohen v. Roll-A-Cover, LLC, 131 Conn.App. 443, 450, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).
In this case, the testimony given by the plaintiff and the defendant, as well as by other witnesses, was, in certain respects, diametrically opposed and irreconcilable with regard to several critical facts. The court had ample opportunity to observe the conduct, demeanor and attitude of each witness, to evaluate the testimony, and to relate the testimony of each witness to the exhibits in the case. In considering the evidence, in addition to evaluating the testimony and exhibits, the court also drew reasonable inferences from the facts established in this case. The court took into consideration, as well, direct and circumstantial evidence that was admitted in the course of the trial.
The court evaluated all witnesses who came before it, taking into account not only their spoken testimony, but also their ability to perceive the things about which they testified, their ability to recall relevant facts and events, any interest that they may have had in the outcome, the reasonableness of their testimony, and any contradictions that arose between their testimony and other evidence introduced at trial. The court's findings of fact, including its decision to credit one witness and not the other, are based upon all of the foregoing factors.
B. FINDING OF FACT AND CONCLUSIONS OF LAW PERTAINING TO THE PROCEDURAL HISTORY OF CHILD SUPPORT ORDERS
Two children were born as issue of this marriage: Marcus, who was born on December 20, 2006, and McKensie, who was born on March 12, 2008.
The court has issued three orders of child support in this case, one at the time of the dissolution judgment, one on February 10, 2014, and the most recent on May 5, 2014. In the instant motions to modify, the parties wish to amend the May 5, 2014 order. The court will consider the three previous orders of child support seriatim.
On two other times, May 27, 2011, and April 16, 2012, the plaintiff filed motions #120, #121 and #138, each seeking, inter alia, increased child support pursuant to the guidelines. The court file reflects, however, that no ruling was ever issued for the motions.
The parties were divorced on August 3, 2010. Each party submitted financial affidavits prior to the judgment. The plaintiff's affidavit was #113 and the defendant's was #114. At that time, the child support guidelines worksheet, #115, reflected both that the plaintiff mother would be custodian, and that the custody would be " shared." As set forth in the child support guidelines worksheet, the defendant's net income was $1,194 per week, while the plaintiff's was $1,019. Under the guidelines, the defendant would have been responsible for 54% of child support and unreimbursed medical expenses, while the plaintiff would have been responsible for 46%. Under the guidelines, the presumptive amount of child support for the defendant would have been $242 a week. The agreement, incorporated by reference into the judgment of dissolution, however, substantially deviated from the presumptive support under the guidelines.
The settlement agreement, #116, incorporated into the judgment of dissolution, #117, provided for no child support. This is a substantial deviation under Mullin v. Mullin, supra, 28 Conn.App. 632. The agreement appears to have intended to provide a rationale for the deviation. After reciting that " [n]either parent shall be obligated to pay child support due to the other at this time"; #116, Sec. 4.1; the agreement further provided that the parties would equally share in " reasonable expenses . . . including but not limited to daycare expenses, unreimbursed medical and health related expenses . . . expenses relating to the children's education and expenses relating to agreed upon activities of the children." #116, Sec. 4.1. Moreover, while the children were in the care of one parent, that parent was " responsible for the regular daily expenses relating to the children . . . i.e., food, diapers, etc." Clothing purchased by either parent was to be used by the minor children in both houses.
The agreement also cited two factors as supporting the deviation from the child support guidelines: " the shared parenting arrangement and the total coordination of family support." #116.
Each of these factors is listed among the criteria allowing for deviation from the presumptive support amount under the guidelines. Regs., Conn. State Agencies § 46b-215a-5c(b)(5) and (6). This court accessed, through its archives, the recording of the canvass concerning the dissolution judgment. The trial court, Roche, J., when adopting the agreement as the court's judgment, made no finding on the record that application of the guidelines would be inequitable or inappropriate.
On December 23, 2013, the plaintiff filed a motion to modify, #151, seeking child support from the defendant for two reasons: (1) because " she was laid off from her job in October 2013, " a claimed change in circumstances, and (2) because of an alleged deviation from the child support guidelines. The parties resolved this motion by means of stipulation, which was accepted as an order of the court on February 10, 2014. #155. Pursuant to this stipulation, the defendant agreed to pay $100 per week for child support retroactive to December 23, 2013, and the parties agreed to split the reasonable expenses of the minor children on a different basis from that set forth in the judgment of dissolution, with 56%, rather than 50%, being paid by the defendant. Another provision of the stipulation pertained to the plaintiff gaining new employment. If that occurred, the plaintiff was required to notify the defendant immediately when she regained employment and what her compensation package and benefits were. New employment " shall be a substantial change of circumstances requiring a modification or elimination of the Defendant's child support obligation" and " shall be retroactive to the Plaintiff's date of employment."
Although the plaintiff moved for a modification at that time, both because of an alleged substantial change of circumstances and under the guidelines, the parties did not submit financial affidavits prior to this order. Further, the court file does not contain a child support guidelines worksheet. Moreover, the canvass conducted by the court, Gallagher, J., concerning the agreement, did not inquire into the financial condition of either party or adherence to or deviation from the child support guidelines. Based upon these factors, and because the factual impulse for this motion was the undisputed claim that the plaintiff had lost her job, the court necessarily infers that this order was based on substantial change in circumstances. There was, however, no finding on the record that the application of the guidelines would be inequitable or inappropriate.
Even though the parties did not submit financial affidavits at this time, the award of $100 a week would have constituted a substantial deviation under Mullin v. Mullin, supra, 28 Conn.App. 632, both at the time of dissolution, as discussed previously, and at the time of the next motion concerning child support, #157, as discussed infra .
On April 22, 2014, the defendant moved for contempt based upon the plaintiff's failure to inform him that she was once again employed (#157). The defendant requested in this motion that the plaintiff reimburse him for child support he paid after she regained employment. Financial affidavits were filed prior to this motion being heard. The plaintiff's financial affidavit, #159, reflected net weekly income of $513.43. The defendant's financial affidavit, #160, displayed net weekly income of $1,620.20. A child support guidelines worksheet, #161, was run from the financial affidavits pursuant to the guidelines. The plaintiff was listed as the custodian on this worksheet. Under the guidelines, the presumptive amount of child support for the defendant was $278 a week. Filing #161.
The parties resolved the defendant's motion for contempt by means of an agreement, accepted as an order of the court, #162, Pickard, J., on May 5, 2014. Under this order, the defendant's child support obligation was reduced to $80 per week retroactive to March 24, 2014. The reduction was supported by the undisputed fact that the plaintiff regained employment, a changed circumstance since the February 10, 2014 order. The order recited that the $80 figure was " based upon the disparity of the parties [sic] income as reflected on their respective financial affidavits filed on this date." " Extraordinary disparity in family income" is a deviation criterion under Regs., Conn. State Agencies § 46b-215a-5c(b)(6)(B), although it applies when the custodial parent has high income in relation to the non-custodial parent, which was not the case at the time of this decision. The weekly $80 child support agreement and award is a substantial deviation from the presumptive amount of $278. See Mullin v. Mullin, 28 Conn.App. 632, 612 A.2d 796. The parties continue to, at this time, engage in shared custody and parenting. The factual basis prompting the defendant's motion for contempt was that the plaintiff had regained employment, which constituted a changed circumstance since the last order of child support. The court, however, did not make a specific finding that application of the guidelines would be inequitable or inappropriate in this case.
Order #162 was the operative order when the plaintiff filed her present motion for modification of child support, #190, as well as when the defendant filed his motion for modification of child support, #211. Both the original order of no child support entered in the dissolution judgment and order #162 were substantial deviations from the presumptive amounts of child support under the guidelines. Had financial affidavits been filed at the time of order #155; that order, too, likely would have substantially deviated from the guidelines. (Please see footnote 6 of this decision.) Although both the original dissolution judgment award of no child support and order #162 were supported by references to accepted deviation criteria, no court in this case, in entering an order of child support that deviated from the guidelines, has ever made a specific finding that such a deviation was compelled because application of the guidelines would be inequitable or inappropriate. As a result, the holding of Righi applies. See Righi v. Righi, supra, 172 Conn.App. 427. In light of the fact that the plaintiff is seeking modification of the defendant's child support obligation under both the child support guidelines and because of a substantial change of circumstances, this court must embark on the following analysis.
The court must (1) decide the net income of each of the parties, (2) review the child support guidelines worksheet based on their net incomes and find a presumptive amount of child support for the defendant, (3) decide if the application of the presumptive amount of child support for the defendant would be inequitable or inappropriate, and, if so, (4) consider whether the financial circumstances of the parties have substantially changed since the time of the last support order. If the court finds that they have, the court must consider modification of the child support order resulting from this substantial change of circumstances.
C. FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO INCOME AND EARNING CAPACITY
The parties submitted financial affidavits to the court on May 5, 2014, when the operative order of child support was issued. At that time, the plaintiff's financial affidavit, #159, reported gross pay of $769.23 a week at Enterprise Iron and net weekly income of $513.43. The defendant's financial affidavit, #160, reflected his base pay as a commercial pilot of $1,887.67 a week, as well as, on an average weekly basis, bonuses of $11.54, profit sharing of $41.08, and rental income of $313.95. The defendant's affidavit, however, also reflected weekly rental expense of $620.13. The defendant's affidavit posited net weekly income of $1,620.20. The rental properties were listed as 67 Chapel Street, Bristol, Connecticut, and 26-28 Hillside Avenue, also in Bristol. The affidavit indicated that the Chapel Street property had almost $21,000 in equity, while the Hillside Avenue property was approximately $7,000 in the hole. At that time, as mentioned above, the parties agreed to, and the court ordered the defendant to pay $80 of child support weekly to the plaintiff, even though the presumptive amount under the guidelines would have been $278.
The parties also filed financial affidavits just prior to the hearing of the instant motions to modify. On December 13, 2016, the plaintiff's financial affidavit, #224, evidenced gross pay of $769 per week at Enterprise Iron and net pay of $438 per week. In other words, although the plaintiff's gross pay remained the same, her net pay was approximately $75 lower. The affidavit also reflected self-employment for the plaintiff at Debonair Eve, which, although footnoted, did not include a figure. The defendant's affidavit, #225, also filed on December 13, 2016, listed workers' compensation payments from his employer of $871 a week and weekly net pay of $746.82. The defendant's recent affidavit did not list any owned rental property.
The parties submitted financial affidavits and child support guidelines worksheets when the incomplete hearing on motion #190 began on February 18, 2016. The court has decided, however, not to consider these affidavits and guidelines worksheets for the following reasons. The hearing on motion #190 was never completed, and the parties, for all intents and purposes, began it anew in December 2016. Moreover, shortly after the court had denied the defendant's motion to dismiss motion #190, on or about April 5, 2016, the defendant went out on workers' compensation. If the court were to consider making an award based upon the February 18, 2016 affidavits, even on an annual average income basis, the court would have to ignore the reality that the defendant's work-related injury vastly diminished his income and, in fact, will continue to do so as long as he is out on workers' compensation. Ignoring this reality would result in an order that, in all likelihood, would be impossible for the defendant to obey.
During the hearing on the instant motions to modify, the plaintiff claimed that the court should consider the defendant's net income to be greater than the weekly workers' compensation net benefit of $746.82 because: (1) the defendant could presently work as a commercial pilot, and, therefore, should be making more money than what he receives as workers' compensation benefits, (2) the defendant's pay stubs reflected income payments in addition to workers' compensation benefits for a substantial time in 2016, (3) although the defendant transferred his side, contracting business to his current wife, the defendant continues to operate this business and purchase equipment for it, and (4) the defendant deeded two rental properties to his current wife for no consideration, and she sold one of the rental properties for a profit. The defendant countered by arguing that (1) the plaintiff is under-employed, e.g., that she has a higher earning capacity in her chosen profession than her current income reveals, (2) the plaintiff could be making additional income as a realtor or as a pilot, (3) the plaintiff could be making additional income as a flight instructor, and (4) the plaintiff receives substantial and regular gifts. Bearing in mind that each party bears the burden of proof as to its motion to modify, the court will consider each side's claims one at a time.
Plaintiff's Claims About Defendant's Earning Capacity
1. Plaintiff's Claims That the Defendant Should Presently be Working as a Pilot
The plaintiff appears to argue either that the defendant should now be working as a commercial pilot or that the court should find the defendant's earning capacity to be higher than the net $746.82 a week he receives for workers' compensation benefits because he could and should be working now as a commercial pilot.
At the beginning of 2016, the defendant was employed by United Airlines as a commercial pilot who flew multi-hour flights. The defendant, however, sustained a serious work-related lower back injury which resulted in him being placed out on workers' compensation on or about April 5, 2016. The defendant's doctor described the injury as " lower back disc herniation and disc fragment." The court finds this description to be accurate and credible. The injury was so severe that, in fact, early on in his treatment, the defendant had to cease physical therapy because his doctor feared the defendant would injure himself further.
Two doctor's reports were submitted into evidence. Each of them checked off every single box under the column " Never" when describing the activities in which the defendant could participate. If these reports were read literally, the defendant could never stand, walk, sit, bend, twist, turn, kneel, squat, crawl, climb, move his head and neck, reach outward, reach above his shoulder, drive or operate company equipment. Additionally, he could never push, pull, lift or carry weights equal to or in excess of ten pounds. Finally, he could never grip, type or use his hands repetitively.
The court does not believe the literal truth of these reports. The court heard and saw credible testimony and evidence that the defendant had placed heavy objects, perhaps an overhead door or doors, in the back of his pickup truck. The court also witnessed a surveillance video in which the defendant was standing on ice skates at a rink, skating slowly, squatting and bending to pick up cones gently, and sliding hockey goals on the ice. The court also heard credible testimony that the defendant was undergoing a stretching regime and attempting to lift light weights. However, the court does find credible the summary statement in each of these two doctor's reports, which read, " Marcus cannot work while undergoing treatment."
The defendant's work requires him to sit for hours on end in one seat. Just because a person can skate gently or occasionally lift a heavy object does not mean that the person is medically cleared to sit for long stretches of time. Moreover, the court finds that the defendant has been seeing a doctor monthly to monitor his workers' compensation injury. As a result, the court also finds and reasonably infers that the workers' compensation carrier for United Airlines scrutinizes the defendant's case regularly and would not continue to pay workers' compensation benefits if it found that the defendant could go back to work. For these reasons, the court finds that the defendant is not presently able to go back to work as a commercial pilot.
The defendant has performed flight instruction on a limited basis, training two students, since the injury, but the training is, more likely than not, of a much shorter duration than the United Airlines commercial flights.
The court also holds that the diminution to the defendant's income arising from his employment injury is " excusable and not brought about by the defendant's own fault." Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977). Additionally, the defendant's reduction in income related to the work injury is not the kind of culpable conduct that would preclude the court from finding that a substantial change of circumstances had occurred. See Olson v. Mohammadu, 310 Conn. 665, 680, 81 A.3d 215 (2013). Finally, because the court has found that the defendant cannot physically return to work at the present time, the court cannot find his earning capacity higher than what he receives as workers' compensation benefits.
The court now proceeds to consider the plaintiff's other arguments, which claim that the court should employ an enhanced income figure for the defendant in its determination of his child support obligation.
2. Plaintiff's Claims That the Defendant Received Income From his Employer in Excess of What He Admitted in 2016
The plaintiff's argument that the court should include, in its consideration of the defendant's child support obligation, income from his employer above and beyond his workers' compensation benefits, has two aspects.
The court recognizes that the plaintiff may have been making another argument, an average annual income claim, in regard to income earned by the defendant prior to his work-related injury. One of the proposed child support guidelines worksheets submitted by the plaintiff averaged all of the defendant's income for calendar year 2016. Another proposed guidelines worksheet averaged the defendant's income from the date of the filing of motion #190, December 28, 2015 through December 2016. As mentioned above, however, the parties never completed the hearing begun in February 2016. For the reasons set forth in footnote 6, the court finds that it would be unfair and unwise to take into account the defendant's income in the period before his work-related injury. Further as this section explains, infra, the defendant will have to disgorge to his employer some of the income the defendant received in 2016. This seems especially appropriate because the defendant had not yet returned to work as of the date of the hearing.
First, the plaintiff introduced Exhibit 3 in an attempt to prove that the defendant's sworn statements in his more recent financial affidavits understated his income as a pilot in the calendar year before these hearings. The first page of Exhibit 3 illustrates that, for the pay period running from January 30, 2016 through February 15, 2016, the defendant had gross earnings of $22,493.88. The defendant testified credibly that he received two paychecks a month. If the figure of $22,493.88 found in Exhibit 3 were to be awarded with every paycheck and multiplied by twenty-six, it would total $584,840.88. This product, of course, eclipses the gross yearly salary of $100,895.08 evidenced in the defendant's May 5, 2014 financial affidavit, which included bonuses and profit sharing. The first page of Exhibit 3, however, included two components that require further explanation: $16,830.88 for profit sharing and $5,663 as a " flight advance." The plaintiff testified credibly that profit sharing varied from year to year and the court finds that the $16,830.88 profit sharing award constitutes the yearly award for 2015. " Flight advances" were paid in the first paycheck of the month because the airline did not know how many actual hours a pilot would work. In the second paycheck of the month, the company makes an adjustment based on actual hours worked, which adjustment is normally a deduction. The third page of Exhibit 3, which is the last paycheck of June 2016, demonstrates how this adjustment worked. Along with regular pay of $6,027.37, a deduction of $2,870.18 appears as a " flight advance." Therefore, the first page of Exhibit 3 included a yearly payment for profit sharing and an exaggerated estimate of what the average semi-monthly paycheck would include as income. For all of the above reasons, the first page of Exhibit 3 is an exception, and indeed quite an overstated exception to the rule of what the defendant garnered, on an average basis, as income while serving as a commercial pilot. Moreover, as discussed in footnotes 6 and 8, supra, the parties' respective financial conditions in early 2016, which were at issue at the time of the first, incomplete hearing on motion #190, February 18, 2016, have been rendered much less relevant by the passage of time and because of the defendant's work-related injury.
Second, the plaintiff argues that the defendant should include sums other than workers' compensation received as income in the computation of child support. As a result of his aforementioned work injury, the defendant began to receive workers' compensation benefits in the amount described above as of April 5, 2016. As the third page of Exhibit 3 demonstrates, however, for several months thereafter, the defendant received not only the compensation benefits, but also other sums from United Airlines, including sums categorized as " regular pay." The third page of Exhibit 3 is the paycheck for the period from May 31, 2016 through June 29, 2016. As mentioned above, this pay stub refers to $6,027.37 of " regular pay, " and deducts a flight advance of $2,870.18.
There was no evidence as to why United Airlines made this paycheck payable for a monthly period, and the court notes the top of this page still refers to the defendant being in a " semimonthly" pay group. The court infers that the switch had to do with the defendant being out of work on workers' compensation.
When the plaintiff's attorney questioned the defendant about why he was receiving " regular pay, " and argued that he should include that in the amounts taken into account for the awards of child support, the defendant made several responses. One was that the airline paid one month late, so, for example, he received pay in March for work he performed in February. The second was that this entry for " regular pay" represented vacation pay and sick time pay. The defendant also testified that he was advised not to spend the vacation pay and sick pay, because he would have to remit these amounts to his employer in the future. Although the parties did not provide any legal guidance to the court on this issue, it appears that the defendant was correct. In the decision of Davis v. Dept. of Children & Families, the workers' compensation review board held that " payments to the claimant compensating the claimant for time lost for a period later determined as a period for which she was entitled to total disability, are advance payments made by the employer on account of her compensable injury . We think the payments made by the employer under its sick leave and collective bargaining agreement obligations [such as vacation time payments] were on account of sums that subsequently became payable by the employer and thus meet the criteria of advance payments for which § 31-314 permits a credit [to the employer]." Davis v. Dept. of Children & Families, No. 4992, CRB 8-05-9 (August 8, 2006) (decision of Compensation Review Board). As a result, the amounts paid to the defendant for sick pay or vacation pay will have to be reimbursed to the defendant's employer, likely when the workers' compensation benefits have been terminated. Therefore, the court finds that it is not appropriate to consider these sums in the court's calculation of what the defendant owes for child support. For these reasons, the court shall not employ the claimed higher income as part of its child support analysis.
3. Plaintiff's Claims that the Court Should Consider Income from the Defendant's Contracting Business
The defendant testified that he transferred ownership of his side business, Pilot Construction, LLC, to his current wife without consideration. Although no date of transfer was elicited from the defendant during the hearing, the defendant's 2015 tax return refers to his current wife as the proprietor of this business. The defendant testified that he did so for " estate planning purposes, " but did not elaborate further. The court reasonably infers that this transfer took place at the same time of the other transfer undertaken for " estate planning" purposes, that of the rental properties discussed in section 4 immediately below, namely early 2015. The plaintiff testified, credibly, that, in May 2016, upon dropping off her child for the defendant's parenting time, she saw a vehicle bearing the name of the defendant's business and the defendant's cell phone number sitting in the defendant's driveway. The plaintiff also admitted a photo showing a large object, one the court finds likely to be an overhead door, which was found in the back of the defendant's pickup truck in 2016. The defendant formerly was employed in contracting. The defendant's current wife had no prior experience in contracting. The defendant testified, credibly, however, that his wife's role as proprietor is to line up contracting jobs, locate workmen to perform the labor, pay the workmen and then pocket whatever profit may be made.
Although there was evidence that (1) the defendant was still involved in the business, at least to some degree, and (2) the defendant transferred the contracting business to his wife for no consideration, the court finds that this transfer occurred ten or eleven months before the plaintiff filed her present motion to modify, and more than one and one-half years before the defendant's instant motion to modify. Furthermore, the plaintiff did not rebut the defendant's claim that he made this transfer for estate planning purposes. It is reasonable to infer that married couples, under our existing estate law, may want to " equal out" assets and liabilities. As a result, the court cannot find that the plaintiff sustained her burden to prove that the defendant undertook this transaction to intentionally diminish his income in a culpable or inexcusable way. See Sanchione v. Sanchione, supra, 173 Conn. 407; Olson v. Mohammadu, supra, 310 Conn. 680 (the culpability needed to be proven is voluntary action undertaken " in order to avoid . . . financial obligations"). More importantly, even if the plaintiff were to have proven that the defendant culpably and intentionally reduced his income by means of this transaction, the only evidence admitted demonstrated that Pilot Construction, LLC, was not profitable. The defendant's 2015 tax return evidenced a net loss of $7,010 for Pilot Construction, LLC. Therefore, the court cannot find that the transfer of this business served to enhance or hide any of the defendant's income.
4. Plaintiff's Claims that Profits Arising from the Sale of Rental Property Should Be Considered to be Income to the Plaintiff
The court also heard evidence as to the transfer of the defendant's rental properties, 7 Chapel Street, Bristol, Connecticut, and 26-28 Hillside Avenue, also in Bristol, (collectively, the rental properties), to his current wife. Two quitclaim deeds admitted as evidence reveal an execution date of February 11, 2015. The defendant, however, testified credibly that the actual transfer took place in January 2015. As with the transfer of Pilot Construction, LLC, the defendant testified that the transfer of the rental properties was accomplished for estate planning purposes. The defendant is still, however, involved in managing rental real estate, collecting rent, fixing some broken objects, performing clerical work and paying bills, jobs he performed when the properties were in his name prior to the transfer.
As with the transfer of Pilot Construction, LLC, however, the transfer of the rental properties to the defendant's current wife occurred well in advance of the filing of both the plaintiff's and the defendant's motions to modify. Under these circumstances, the court cannot find that the plaintiff sustained her burden to prove that the defendant undertook this transaction to intentionally diminish his income in a culpable or inexcusable way. See Sanchione v. Sanchione, supra, 173 Conn. 407; Olson v. Mohammadu, supra, 310 Conn. 680.
The court needs to consider, however, whether the defendant may have received additional income from devising the rental properties to his wife, and whether any additional income derived from these transactions would render his most recent financial affidavit inaccurate. As part of making this determination, however, the court must review any potential financial benefit that the defendant derived from these transactions.
One of the two rental properties, 7 Chapel Street, was sold on May 25, 2016. Plaintiff's Exhibit 13 demonstrates that the seller, the defendant's current wife, netted $22,890.26. This sale additionally paid off the first mortgage loan of $93,109.32, and the second mortgage loan of $79,926.74, for a total mortgage pay-off of $173,036.06. Further, the defendant's 2015 tax return suggests that 7 Chapel Street lost $271.70 weekly during that year. Doubtlessly, the mortgage payments on the rental properties made up the lion's share of such losses.
The plaintiff argued that the defendant's current wife netted $32,890.26 from this sale, adding the $22,890.26 in the " Cash . . . To Seller" line with the $10,000 Excess Deposit. The $10,000 Excess Deposit, however, is within the category entitled " Due from Seller at Closing, " and comprises a portion of the $197,556.47 that was subtracted from the $220,446.73 sales price to derive the net income of $22,890.26.
The plaintiff argued that the defendant benefitted substantially from the pay-off of the mortgages in the sale of 7 Chapel Street. While that may be true, the transfers occurred, as noted above, many months before the instant motions were filed. Moreover, support orders must be based on the net incomes of the parties. Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001). Regs., Conn. State Agencies § 46b-215a-2c(c)(2) sets forth the deductions from gross income to be used in arriving at the net income figure, and the commercial mortgage expense does not qualify as an expense for the netting of income for child support purposes. Id.
Further, although the plaintiff argued that the profit from the sale of 7 Chapel Street inured to the benefit of the defendant, no evidence was adduced during the hearing to demonstrate where these proceeds were deposited or how the defendant may have accessed these proceeds. As mentioned above, the defendant and his wife could reasonably have had a legitimate estate planning rationale for which the defendant transferred the rental properties to his wife, these transactions occurred well before the pending motions to modify were filed, and, once the defendant's wife owned these properties, she could dispose with them as she willed. For these reasons, the court finds that it will not consider the profit from the sale of 7 Chapel Street or any other benefits that may have inured to the defendant, including the elimination of mortgage payment obligations in February 2015, as enhancers of the defendant's income for purposes of deciding these two motions.
5. Conclusion
For all of the above-stated reasons, in embarking on its analysis of the presumptive amount of child support that would be owed by the defendant under the guidelines, the court will use, for net income purposes, the amount listed on the defendant's December 16, 2016 affidavit, e.g. the amount he is receiving as his present weekly net workers' compensation benefit.
Defendant's Claims About Plaintiff's Earning Capacity
The other side of the equation is the plaintiff's net income or earning capacity. As stated above, the plaintiff's most recent financial affidavit indicates that she has a weekly net income of $438. The defendant argued, however, that the plaintiff has a greater earning capacity. Specifically, the defendant claimed that (1) the plaintiff is under-employed, e.g., that she has a higher earning capacity in her chosen profession than her current income reveals, (2) the plaintiff could be making additional income as a realtor or as a pilot, (3) the plaintiff could be making additional income as a flight instructor, and (4) the plaintiff receives substantial and regular gifts. The court shall consider these arguments seriatim.
1. Defendant's Claim that the Plaintiff is Underemployed
These claims are easily dismissed. Drawing upon the salary that the plaintiff made prior to losing her last job, the event that prompted the first order awarding child support, the defendant claims that the plaintiff could be making more money. The defendant failed to sustain his burden of proof on this claim. The fact of the matter is that the plaintiff involuntarily lost the higher paying job she had, regained employment within a matter of months, has not received bonuses, although they are available, and has remained at the same salary level for several years.
2. Defendant's Claim that the Plaintiff Could Supplement Her Income as a Realtor or Pilot
The defendant failed to satisfy his burden of proof on this claim as well. The plaintiff testified that she has not served as a realtor in many years, that acting as a realtor requires one to be available at any time to show a house, and that the plaintiff does not have the time to supplement her income through being a realtor or a pilot. The plaintiff works forty hours a week in her present job and takes care of the children from this marriage and from her present marriage. The plaintiff also testified credibly that she does not have the level of commercial pilot's license to make switching careers worthwhile and that, if she were to work as commercial pilot and the defendant were to return to work after his injury subsides, the two of them would have a very difficult time planning parenting time.
3. Defendant's Claim that the Plaintiff Could Supplement Her Income as a Flight Instructor
This claim fails for the same reasons as the previous claim, namely that the plaintiff does not have sufficient time available in which to work enough as a flight instructor to make it a profitable enterprise.
4. Defendant's Claim that the Plaintiff Receives Regular Gifts
The defendant failed to prove this claim as well. The evidence adduced demonstrated that the plaintiff's current husband draws upon his pension fund to make mortgage payments, that the plaintiff and her husband received substantial sums from an insurance carrier for a homeowner's loss, and that the plaintiff irregularly receives modest gifts from her parents or in-laws.
5. Conclusion
The court will consider the plaintiff's net weekly income to be the amount reflected in her December 16, 2016 affidavit for the purpose of ascertaining presumptive child support from the defendant under the guidelines.
D. FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO PRESUMPTIVE CHILD SUPPORT UNDER THE GUIDELINES AND THE APPLICABILITY THEREOF TO THIS CASE
The plaintiff's attorney ran a worksheet for presumptive child support under the guidelines, #233, using the amounts reflected in the last affidavits submitted by the parties, which are the amounts that this court has found it will use. Under this scenario, the defendant's presumptive weekly child support would be $246, and the defendant's percentage of unreimbursed medical expenses and child care would be 44 percent. The $80 a week presently paid for child support by the defendant is far more than a 15 percent deviation from the presumptive amount of $246, and therefore, under Mullin v. Mullin, supra, 28 Conn.App. 632, is substantial. For the following reasons, however, the court finds that the application of the presumptive amounts of child support would be inequitable or inappropriate under the circumstances of this case.
The parties have had a shared physical custody arrangement for their two minor children since they were divorced on August 3, 2010. Pursuant to the original agreement, neither parent paid child support. The custodial parent was to pay for all expenses while the children were in his or her custody. Moreover, all clothing purchased by either parent could be used by the children in either house. The parents were to split evenly all other expenses. At the time, the parents had quite similar incomes.
Very little has changed over time concerning custody, parenting time and child support since the dissolution of this marriage. Over time, the amount of child support has changed twice. First, when the plaintiff lost her job, the defendant agreed to pay $100 per week. The second change occurred when the plaintiff regained employment, albeit at a lower income, and the award of child support was reduced to $80 per week. The $80 per week order of child support reflects that the plaintiff was, at the time of that order and, is now, making far less than she made at the time of dissolution. The only other change occurred when the defendant agreed to increase his percentage of unreimbursed expenses to 56 percent.
Significantly, although there have been various motions filed by both parties to amend custody and parenting, the orders concerning the parties' shared physical custody arrangement have remained the same. Both parties are still required to pay for the expenses incurred when the children are in their custody. Both parties are still required to pay for clothing that the children can wear in either house.
Based upon the abovementioned facts, the court finds that a deviation from the presumptive amount in the guidelines is permitted because of the shared physical custody arrangement and because the structure thereof reduces expenses for the children, for the parent, in this case, the plaintiff, with the lower net weekly income. Therefore, under the circumstances of this case, the application of the child support guidelines would be inequitable or inappropriate.
The court must now move to consider whether there is a substantial change in circumstances which would support a modification of child support.
E. FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO SUBSTANTIAL CHANGE IN CIRCUMSTANCES
1. The Plaintiff's Motion to Modify Based Upon Substantial Change in Circumstances
The hearing on the plaintiff's motion to modify was overtaken by the passage of time and was eclipsed by the defendant's work-related back injury. The plaintiff attempted to demonstrate, in motion #190, that the plaintiff's net income had increased since the last child support order on May 5, 2014. The hearing, which began on February 18, 2016, however, was never finalized, and the defendant went out on workers' compensation on April 5, 2016. The court's consideration of the financial circumstances of the parties, as mentioned above, took into account the most recently-filed affidavits. In other words, before the plaintiff could convince the court that the defendant's child support should increase, the defendant sustained a debilitating work injury that substantially lowered his income. At the time of the initial hearing of motion #190, therefore, the plaintiff's ability to convince the court that an upward modification of child support was precluded by the inability of the parties to continue the hearing before Judge Pickard. When motion #190 was heard afresh by this court, the plaintiff, based upon the most recent affidavits, did not sustain her burden of proving a substantial change of circumstances that would support an increase in child support. The court then, moves to consider the defendant's motion to modify, also based on a claim of substantial change of circumstances.
2. The Defendant's Motion to Modify Based Upon Substantial Change in Circumstances
As mentioned above, the movant " bears the burden of showing the existence of a substantial change in the circumstances." (Internal quotation marks omitted.) Santoro v. Santoro, supra, 70 Conn.App. 218-19. In this case, the defendant " must clearly and definitely establish the occurrence of a substantial change in the circumstances . . . that makes the continuation of the prior order unfair and improper." Savage v. Savage, supra, 25 Conn.App. 696. If the court finds a " substantial change in circumstances, " it may consider the evidence of the changed circumstances in structuring the modification orders. Kalinowski v. Kropelnicki, supra, 92 Conn.App. 350. The court's " inquiry, then, is limited to a comparison between the current conditions and the last court order." (Internal quotation marks omitted.) Crowley v. Crowley, supra, 46 Conn.App. 92.
The defendant's work-related injury constitutes a substantial change of circumstances. The defendant's May 5, 2014 financial affidavit, submitted at the time of the last child support order, showed net income of $1620.20 per week. The defendant's December 13, 2016 affidavit demonstrates weekly net pay of $746.82. The downward change results from the defendant being out on workers' compensation. The court has found, supra, that the defendant's work-related injury was not intentional and was excusable. Having found that the defendant's back injury has resulted in a substantial decrease in his financial circumstances, the court now proceeds to consider how evidence of the changed circumstances affects the modification of the child support order. As mentioned above, the court may consider evidence of the changed circumstances in crafting the modified child support order.
The parties have, for almost seven years, utilized a negotiated figure in arriving at the defendant's child support obligation. The last order of child support was $80 per week. Using the guidance of Kalinowski, the court finds that it would be useful, in drafting a modified order of child support, to examine the effect that the financial changes of the parties would have on the last agreed-upon amount of the defendant's child support obligation. See Kalinowski v. Kropelnicki, supra, 92 Conn.App. 344.
The defendant's present net weekly income, based upon his workers' compensation benefits, is 46.1 percent of what it was at the time of the last order. The plaintiff's net weekly income, mostly because of higher deductions, has been reduced as well. On May 5, 2014, at the time of the last order, the plaintiff's net weekly income was $513.43; as of December 13, 2016, her net weekly income was $438. The plaintiff's net weekly income is 85.3 percent of what it was at the time of the last order of child support. On a strictly mathematical basis, the defendant's net weekly income decrease would support a decrease of his child support obligation of 53.9 percent which would reduce the weekly $80 to $43.12 per week. The plaintiff's net weekly decrease, however, would support an increase of 14.7 percent to $91.76 per week. Averaging the two figures together yields a child support payment of $67.44 per week. The court rounds this figure down to $67 per week and orders the defendant to pay weekly child support in that amount.
The defendant's motion to modify, #211, did not seek a reduction of the defendant's contribution toward the reasonable expenses of the minor children as set out in Article IV of the dissolution judgment. Therefore, the defendant's contribution toward these expenses shall remain at 56 per cent.
Section 46b-86(a) gives the court " broad and liberal" discretion to order a retroactive modification of the defendant's child support, effective back to the date of service of this motion, which, in this case, was September 21, 2016. General Statutes § 46b-86(a); see also Hartney v. Hartney, 83 Conn.App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). Although the court may consider such factors as the length of time between the date of filing and the date of deciding a motion to modify, and the changes in the parties' incomes and needs during the pendency of the motion; Zahringer v. Zahringer, 124 Conn.App. 672, 689, 6 A.3d 141 (2010); there is no bright line test requiring the court to reach a certain result on retroactivity. See Hane v. Hane, 158 Conn.App. 167, 118 A.3d 685 (2015). Based upon the parties' respective incomes and financial needs, and, in no small respect, the court's findings set forth, infra, of the defendant's contempt concerning his child support obligations, the court declines to exercise its discretion to amend the defendant's child support downward since the date of service of his motion to modify. Rather, the downward modification of the defendant's child support order to $67 per week shall be effective on the date on which this memorandum is issued.
As stated clearly above, the court's decision to grant the defendant's motion to decrease his child support is based upon the diminution of his income brought about by his workplace injury. The defendant is hereby ordered to notify the plaintiff's attorney within five business days as to when he returns to work. The court would certainly entertain a motion for modification by the plaintiff at that time. The court shall now consider the plaintiff's motion for contempt, #215.
II. THE PLAINTIFF'S POSTJUDGMENT MOTION FOR CONTEMPT
On October 7, 2016, the plaintiff moved for contempt, for further orders and for attorneys fees. The motion claimed that the defendant violated the last order of child support by failing to pay child support since July 2016. The motion further claimed that the defendant failed to attend a co-parenting session with a counselor and then failed to fulfill his responsibilities in regard to an amended counseling program crafted by the guardian ad litem. Moreover, the motion alleged that the defendant failed to participate in the PEACE Program. Finally, the motion averred that the defendant failed to cooperate on issues regarding the childrens' activities, making co-parenting counseling even more necessary.
In her prayer for relief, the plaintiff asked the court to find the defendant in contempt and to order the defendant to immediately pay the plaintiff for the child support arrearage, to sanction the defendant for failing to participate in the Beacon Behavioral Health Program, and to pay for the cost of the program should the court reinstate it, to order sole custody to the mother, to order another custody evaluation, and to award the plaintiff reasonable attorneys fees and GAL fees and costs for the necessity of bringing this motion.
The custody issues raised in this motion were disposed of by means of an agreement, #222, entered on December 13, 2016 as an order of this court, Moore, J., in which the parties consented to refer this matter to family services and to cooperate with them, assuming that family services accepted the matter for a full custody evaluation. The court will consider the other issues raised in this motion seriatim.
The court heard this motion on December 13, 2016 and January 24, 2017.
The party seeking a finding of contempt must prove a willful violation of a clear court order. " The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind." (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998), quoting Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). A person may not be held in contempt of an order of which that person could not have been aware. Calway v. Calway, 26 Conn.App. 737, 747, 603 A.2d 434 (1992).
The court must find that the defendant violated the order by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). " This heightened standard of proof adequately characterizes the level of certainty appropriate to justify civil contempt sanctions, especially when those sanctions may include incarceration . . . Moreover, within our state's existing legal framework for indirect civil contempt proceedings, a clear and convincing standard of proof is consistent with the threshold substantive requirement that the directives of the underlying court order be 'clear and unambiguous.' . . . Our rigorous due process requirements for indirect civil contempt proceedings likewise demand a heightened evidentiary standard . . . In sum, a civil contempt finding should not attach to an individual just because it is more likely than not that an injunction was disobeyed beyond the eyes of a court." (Citations omitted; internal quotation marks omitted.) Id., 319.
" Noncompliance alone will not support a judgment of contempt." (Internal quotation marked omitted.) Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). " [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995); see also Niles v. Niles, 9 Conn.App. 240, 253-54, 518 A.2d 932 (1986) (sufficient factual basis to explain plaintiff's failure to obey order); Meehan v. Meehan, 40 Conn.App. 107, 111-12, 669 A.2d 616 (1996) (court within discretion to not find wife in contempt for removing children from family home when she was afraid for their safety due to father's conduct).
" A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful." Eldridge v. Eldridge, supra, 244 Conn. 529 (finding of contempt upheld, even though plaintiff correct that he had overpaid under terms of judgment); see also Jenks v. Jenks, 39 Conn.App. 139, 142-43, 663 A.2d 1123 (1995) (plaintiff willing to make up payments he did not understand he was liable for, and should not have been found in contempt).
Ambiguity is a factor for the trial court to consider when making a finding of wilfulness, but does not require such a finding. Sablosky v. Sablosky, 258 Conn. 713, 720-21, 784 A.2d 890 (2001). " [T]here may be circumstances in which an ambiguity in an order may preclude a finding of contempt . . . when there is an adequate factual basis to explain the failure to honor the court's order." (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn.App. 771, 777, 804 A.2d 889 (2002).
" The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt." Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974); see also Tatro v. Tatro, 24 Conn.App. 180, 186, 587 A.2d 154 (1991) (plaintiff unable to obtain physical custody of child as ordered by the court). The respondent must have the opportunity " to demonstrate that his failure to comply with the order of the trial court was excusable." Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994).
The burden is on the alleged contemnor to prove inability to comply. Perry v. Perry, 222 Conn. 799, 805, 611 A.2d 400 (1992), overruled on other grounds by Bryant v. Bryant, supra, 228 Conn. 630; see also Leslie v. Leslie, 174 Conn. 399, 403, 389 A.2d 747 (1978); Bunche v. Bunche, 36 Conn.App. 322, 325-26, 650 A.2d 917 (1994).
The evidence adduced during this hearing demonstrated, by clear and convincing evidence, that the defendant clearly and willfully violated a clear court order, namely the May 5, 2014 order of $80 a week of child support. The evidence proved that the defendant was well aware of this order, and that, notwithstanding this awareness, he simply stopped paying child support in August 2016, when he ceased receiving payments from his employer of past due income, vacation and sick time. Even when there may be some ambiguity about the meaning of a court order, " [t]he appropriate remedy for doubt about the meaning of a judgment is to seek a judicial resolution of any ambiguity; it is not to resort to self-help." Sablosky v. Sablosky, supra, 258 Conn. 720. In this case, there was no doubt at all as to what the child support order meant; the defendant, in fact had agreed to it. As a result, there was no reason for the defendant to resort to self-help. The defendant's decision to resort to self-help by stopping his child support payments unilaterally evidences his willful violation of the court order of child support.
The defendant's willful violation of the court order concerning child support was further underscored in a series of emails the defendant introduced between himself and his erstwhile attorney, who, for several months, had advised the defendant of the necessity of bringing a motion to modify his child support downward based upon his work-related injury. The defendant was in the process of paying his former attorney fees owed, and, during this time, regularly asked the attorney to file the motion to modify. The attorney never did, but nothing during this period prevented the defendant from doing what he eventually did, i.e., filing his own appearance and filing the motion to decrease his child support obligation.
For the abovementioned reasons, the court finds the defendant in contempt of the court order to pay $80 weekly in child support. The court proceeds to ascertain the amount of child support arrearages.
The last full child support payment made by the defendant was received by the plaintiff on July 26, 2016. The last partial child support payment made by the defendant was received by the plaintiff on August 25, 2016, in the amount of $12.63. Until he ceased making child support payments, the defendant was satisfying his child support obligation through semi-monthly transfers of $172 to the plaintiff. The defendant, therefore owes $331.37 for the month of August 2016, and an additional $2,752 for the months of October 2016 through April 2017 ($344/month times 8 months), as well as $240 for the first three weeks of May, for a total arrearage of $3,323.37 through May 20, 2017. To purge this contempt, the defendant must (1), on or before June 15, 2017, pay to the plaintiff $500, (2) on or before July 13, 2017, pay to the plaintiff an additional $500, and (3) pay the remainder of the arrearages, $2,323.37, at the rate of $16 a week until the entire amount of $3,323.37 is paid in full. If, however, at any time, the defendant receives a lump sum payment from the workers' compensation insurer, he shall pay to the plaintiff whatever remains of the owed arrearages within two weeks of the defendant's receipt of his proceeds from the lump sum payment. The defendant is, therefore, additionally ordered to inform the plaintiff through counsel of his award of a lump sum payment from his workers' compensation injury within one week of the defendant's notice thereof. The court's order of the periodic payment of the amount owed because of the defendant's contempt is subject to modification when the defendant regains full-time employment. Therefore, the defendant is also ordered to inform the plaintiff through counsel of his regaining of full-time employment within one week of beginning such full-time employment.
The payments ordered to purge the contempt of the defendant are, of course, in addition to the weekly child support order of $67 owed by the defendant to the plaintiff.
Upon receipt of an affidavit of attorneys fees from plaintiff's counsel specifically for the work involved on this motion pertaining to the failure of the defendant to pay child support, the court will review same to determine an award of attorneys fees to the plaintiff's counsel.
In regard to the allegations of contempt arising from counseling efforts and the PEACE program, the court finds that, while the defendant did not cooperate to the fullest extent possible, there was some ambiguity as to when the programs were to end as to whether the defendant brought the termination of the programs. Therefore, the court finds that the plaintiff failed to sustain her burden to prove, by clear and convincing evidence, a willful violation of clear court orders. The court is cognizant that, even when it does not find contempt, it may order a remedy. " [E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988) (court still required to hold evidentiary hearing to support such orders); see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within court's general remedial discretion). The court, therefore, exercises its discretion to order the defendant to cooperate fully with any future orders of the court concerning co-parenting counseling or classes and counseling sessions for either the parties or the minor children.
III. CONCLUSION
For the reasons set forth above, the court denies the plaintiff's motion to modify, #190, grants the defendant's motion to modify, #211, and grants that portion of the plaintiff's motion for contempt, #215, that claims that the defendant willfully violated his order of child support. The defendant's lowered child support order takes effect on the date of this memorandum of decision. The court will award attorneys fees to the plaintiff's attorney after reviewing an affidavit pertaining to the successful work on the motion for contempt. In order to purge his contempt, the court orders the defendant to pay the child support arrearage of $3,323.37 as set forth in the body of this memorandum and to provide plaintiff's counsel with notice as set forth above.
SO ORDERED.