Opinion
No. FA 01-0449944S
July 5, 2006
MEMORANDUM OF DECISION ON MOTION FOR ORDER RE CHILD SUPPORT (#127)
This case presents the question of whether travel expenses incurred by a father living in Michigan to spend parenting time with his daughter living with her mother in Connecticut should affect his child support obligation. The plaintiff has filed the pending motion to modify the child support order of $500 per month entered June 26, 2000, by agreement of the parties as part of the judgment of divorce by the Court of Common Pleas for Cuyahoga County, Ohio. After that, the plaintiff moved to Connecticut with the parties' minor child, Rachel, and she filed the Ohio decree in this court as a foreign matrimonial judgment on March 24, 2004. The parties appeared with counsel for hearing on the pending motion on May 18, 2006, and filed briefs on June 8, 2006. At that hearing, the defendant was the only person offering live testimony. For the reasons set forth below, the motion to modify is granted.
Under the newly-revised parenting plan approved by this court on May 18, the father will have parenting time with Rachel approximately twelve times a year. The new orders oblige the mother to pay for the expense of "two one-way trips" between Michigan and Connecticut. The defendant will bear the expense for the other trips. Last year the father incurred reasonable expenses of $11,589.70 for 18 parental visitations last year, an average of almost $650 each time. Since the original child support order, both parents have had other children. The issues pending before the court are whether the father's travel expenses should affect his child support obligation and whether the child support computation should take into consideration the parents' duty of support to their other child. The court will address these issues separately.
The defendant has stipulated to the accuracy of the income and deductions listed on lines one through eleven of the child support guidelines worksheet submitted by the plaintiff, but argues that he is entitled to a deduction for an imputed support obligation for a qualified child because he is defending against a motion to modify child support. Without such a deduction, the parties' combined net weekly income would be $4,390. Since that amount exceeds the maximum amount listed in the guidelines of $4,000 per week, the child support guidelines would not be directly applicable. See Benedetto v. Benedetto, 55 Conn.App. 350 (1999), cert. denied, 252 Conn. 917 (2000). The preamble to the guidelines makes clear that for families with net incomes above that amount the court is free to use its discretion under the law to make a child support award.
[C]ourts remain free to fashion appropriate child support awards on a case-by-case basis, provided that the amount of support prescribed at the $4,000 level is presumed to be the minimum that should be ordered in such cases.
"Extension to higher incomes," Preamble to the Child Support and Arrearage Guidelines, Section (e)(6). The basic child support obligation "prescribed at the $4,000 level" for one child is $473, and the father's share of this amount, based on the parties' respective shares of their combined net income (absent a deduction from the father's income for an imputed support obligation), would be $189. That amount would be the minimum presumptive amount in this case. The plaintiff seeks an award of child support of at least that much.
The child support guidelines allow calculation of an imputed support obligation when an "initial child support award is being established, or a parent is defending against a proposed modification." Regs., Conn. State Agen. (The Child Support Guidelines), § 46b-2165a-2b(e)(1)(B). The mother has not offered a valid reason why the latter exception would not apply here. Under the guidelines, the father is therefore entitled to such a deduction from his income of $196 per week, the resulting combined net income is $4,190, and the minimum presumptive amount is still $189.
Although the child support guideline amounts are no longer controlling because the parties' combined net income exceeds $4,000 per week, the methodology and reasoning of the guidelines are still appropriate. The guidelines aim for consistency in all child support orders in this state, for families of all income levels, and a court setting child support for parents with incomes exceeding $4,000 per week should do so as well. The minimum presumptive amount here is $189 per week. Under the child support guidelines, the percentage of total net parental income allocated to the basic support obligation for parents with combined net weekly income of $4,000 is 11.83 per cent (the $475 basic child support obligation divided by combined net weekly income of $4,000). Were the court to use that percentage to extrapolate a weekly support obligation for these parents, whose combined net weekly income is $4,190, that obligation would be $496 per week, and the father's 40 per cent share would be $198 per week. That amount is high, however, because the child support guidelines are premised on parents spending increasingly smaller percentages of their net income on support obligations as parental income increases. See Preamble, supra, at § (e)(4). For example, the basic support obligation of $441 per week for one child whose parents' combined net weekly income is $3,500 represents 12.6 per cent of their net income. Under the facts and circumstances as proven here, the court would order the father to pay child support at the level of $193 per week absent a deviation.
The father seeks a reduction in child support based on the travel expenses he incurs to spend parenting time with their child. "Significant visitation expenses" have long been a recognized criterion for deviating from a presumptive support amount. See, e.g., Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994); Child Support Guidelines, supra, § 46h-2165a-3(b)(3)(A). The Child Support Guidelines permit deviation from the presumptive amount when "such amount would be inequitable or inappropriate." § 46h-2165a-3(a). The mother argues that the father consented to her relocation with the minor child without seeking any financial consideration for his visitation expenses in the child support order. In effect she claims that he waived his right to seek a reduction of child support because of his travel expenses or consented to assume those expenses himself. The father asserts, on the other hand, that his then-wife deceived him about her intent to move to the east coast. As a result, he forfeited an opportunity to work in New York or Boston, where hospitals had offered him positions in his specialty. By the time he knew she was going to leave the mid-west, he had accepted a position at a Cleveland hospital, which later rescinded the offer when officials there learned he would be involved in litigation. It took him a year to find another position in his field, and he now works at a hospital in Detroit, Michigan. He has unsuccessfully tried repeatedly to obtain a position in the tri-state area. Neither of these arguments are persuasive to the court.
Many times a custodial parent's relocation with a minor child to a distant state has the effect of ending frequent visitation by the other parent. Although the Preamble to the Child Support Guidelines describes the "normal visitation schedule" as "typically" including two overnights on alternate weekends and "other visits of short duration, which may occasion an overnight stay during the week;" Preamble, supra, § (1)(4); a non-custodial parent's access to the minor child after relocation frequently must take the form of phone calls, e-mails and other internet contact, letters and cards, and much less frequent in-person contact. This father, on the other hand, did not permit the relocation of mother and child from the mid-west to the east coast to reduce his time with his daughter. Instead, he spent almost $12,000 last year in transportation costs to get from Detroit to Westchester, New York, where he spent almost every other weekend with Rachel at his parents' home there. The record of credit card expenses last year introduced into evidence showed that the father's air travel last year for visitation cost him an approximate average of slightly more than $300 per round trip. Under the newly-modified parental access plan, the father will now spend twelve weekends with his daughter each year (plus other vacation periods of longer duration). Under that agreement, "the father will be responsible for all transportation" except for "two one-way trips" for which the mother will be responsible. The court finds it inequitable for the father's child support obligation not to take into consideration this significant disparity in the travel costs necessary for Rachel to spend time with her father.
Many non-custodial parents have some transportation costs to see their child — for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child, but these ordinary expenses usually do not warrant a deviation from the presumptive amount. This father's costs for travel between the mid-west and east coast, however, are sufficiently significant to justify deviation. The court will order a deviation so that the father can deduct one-half of his portion of the air and car expense for traveling between Michigan and Connecticut (but not for parking or ground transportation to and from the airport) he incurs for visitation from his child support.
One-half of his portion amounts to one-third of the total expense since the parenting agreement assigns responsibility for two one-way trips to the mother.
Using last year's expenses to determine the exact amount of the deviation for the next year, the court orders a downward deviation for the next twelve months in the amount of $29 per week from the $193 amount that the court found otherwise justified, for a child support obligation of $164 per week, effective May 19, 2006, when this court approved the new parenting schedule. The new order is an increase of slightly more than $200 per month. The father is ordered to pay the arrearage resulting from the increase immediately.
The plaintiff has requested that the modification be retroactive to May 24, 2004, the date on which her motion for modification was served upon the defendant, as is permitted under General Statutes § 46b-86(a). Ordinarily, a party "should not be penalized by the passage of time from the date she filed the motion to modify . . . to the date on which the new hearing will be held." Bartlett v. Bartlett, 220 Conn. 372, 384, 599 A.2d 14 (1991). Here the evidence establishes that the father incurred more than $11,000 in reasonable visitation expenses in 2005 under the previous visitation schedule. He was spending more for his travel to see Rachel than for child support. The court finds it inequitable under these circumstances for him not to receive credit for at least half of these visitation expenses. Applying this credit retroactively as a deviation would result in a reduction in his support order for the period prior to the May 19, 2006, change in the parenting schedule, but since the father did not seek a reduction in child support, the court makes this change effective only upon the new parental access order. In view of the new schedule, the court does not deem it appropriate to give him credit for ground travel or airport parking, because the new schedule provides that exchange of the child will occur at the airport, a provision not contained in the previous custody order. Before the new visitation order, however, his ground travel and airport parking was appropriate to consider in any deviation.
The court is aware that transportation costs are not stable, however, and orders that the child support obligation should be adjusted each year to reflect changing transportation costs. On each May 19 hereafter, the father's weekly child support obligation shall be adjusted by subtracting from the $193 amount one-half of the reasonable expense he incurred in the previous calendar year for airline travel (for himself or for Rachel) between the mid-west and east coast in order for him to see Rachel in the times allotted under the parenting access schedule.
Under Connecticut law, which the parties have agreed the court shall apply, each child support order must also contain a provision for payment of unreimbursed medical expenses and qualifying childcare expenses. See Child Support Guidelines, supra, §§ 46b-215a-2b(f) and (g). The father shall pay one-third of unreimbursed medical expenses and of qualifying childcare expenses. This percentage shall not vary from year to year.
The plaintiff has also asked for an award of counsel fees for her expenses to pursue this motion. Section 46b-62 of the General Statutes permits awards of counsel fees in family matters, but requires the court to consider the parties' "respective financial abilities and the criteria set forth in section 46b-82." Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees. (Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Based on the evidence offered, and after considering the parties' respective financial positions in light of the statutory factors set forth in § 46b-82, as elucidated by the court in Miller v. Miller, the court declines to award counsel fees.
ORDERS
1. The plaintiff's motion for modification of child support is granted, effective May 19, 2006.
2. The defendant will pay weekly child support in the amount of $164 for the year following May 19, 2006. He shall pay the arrearage on this order in full immediately.
3. Beginning May 19, 2007, and on each May 19 thereafter, the father's weekly child support obligation shall be adjusted by subtracting from the $193 amount one-half of the reasonable expense he incurred in the previous calendar year for airline travel between the mid-west and east coast in order for him to see Rachel in the times allotted under the parenting access schedule. If the father drove between Michigan and Connecticut instead of flying for any visitation, his reasonable mileage expenses for each such trip shall be included in his travel expenses, at the rate permitted by the Internal Revenue Service but in an amount not to exceed the average cost per trip that year for airline travel expenses.
4. By March 1st of each year, the father shall submit to the mother an itemized list of his air and car travel expenses, with copies of credit charge statements and airline ticket receipts.
5. If the parties can agree as to the amount of deviation to which the father is entitled under this order for the following year, they shall signify that agreement in a written and notarized agreement. Said agreement shall be submitted to the authority responsible carrying out the withholding order on the defendant's wages, and that authority shall modify the wage withholding to reflect this agreement. If the parties cannot agree, either may request a judicial determination. Until such an agreement or court order, the father shall continue to pay the previously-ordered child support amount, but any such agreement or court order shall be retroactive to May 19 of that year.
6. The father shall pay one-third of unreimbursed medical expenses and of qualifying childcare expenses for the minor child.