Summary
In Crouse v. Crouse, 21 Conn. L. Rptr. 390, 1998 Ct. Sup. 1642 (Solomon, J., 1998) the court elected to follow Charette rather than Bridgeforth: "In a relatively recent Superior Court decision, the court conducted a thorough and thoughtful analysis of this issue and concluded that the obligor should not be relieved of his support obligation during the period of his incarceration.
Summary of this case from Sorey v. SmithOpinion
No. 0107979
February 11, 1998
MEMORANDUM OF DECISION
The above-captioned matter comes to this Court on Defendant's post-judgment motion seeking a modification of child support orders currently in effect for the support of the parties' two minor children (presently six and seven years of age). The parties' marriage was dissolved pursuant to a decree entered on February 29, 1996 which further provided, inter alia, that the Plaintiff have custody of the two minor children and that the Defendant pay to her the sum of $56.00 per week for their support (which sum purported to be in accordance with the Connecticut Child Support Guidelines).
The Defendant now moves, pursuant to motion dated November 5, 1997, to modify the aforesaid child support order. It should be noted, preliminarily, that the motion is defective in merely alleging a substantial change in circumstances (the appropriate legal standard for modification) without specifying the nature of the alleged change. The recently revised Practice Book rules regarding family matters, which took effect prior to the filing of the instant motion, require that any motion for modification "state the specific factual and legal basis for the claimed modification and . . . include the outstanding order and date thereof to which the motion for modification is addressed." Practice Book § 1227(e). Defendant's motion fails to set forth the required information. Notwithstanding this failure to adhere to our rules of practice, the Court, having been apprized of the factual basis for the relief sought and in the interests of judicial economy, will address the merits of the motion.
The specificity requirement of Practice Book § 1227 serves the fundamental purpose of giving the responding party fair notice of the moving party's claims. The Court's determination of this matter on the merits, particularly in the absence of a motion to strike or dismiss, is not indicative of how it will address similarly defective motions in the future.
The Defendant, subsequent to the entry of the decree, was arrested on and pleaded guilty to felony assault charges. He is currently incarcerated and will remain so for approximately two-and-a-half years during which time he will be unable to generate income as he has in the past. It is this reduction in income which serves as the basis for Defendant's claim that there has been a substantial change in circumstances warranting a modification of the current child support order.
The issue of whether an obligor's loss of income due to incarceration constitutes a substantial change in circumstances warranting a modification of a support order is one which has not been specifically addressed by our appellate courts. There is no consensus amongst the lower courts of this state that have considered the issue; see Scapin v. Scapin, 20 CONN. L. RPTR. 348 (July 28, 1997, Lifshitz, F.S.M.) and cases cited therein; and courts in other states are similarly divided. See F. Wozniak, Annot., Loss of Income Due to Incarceration as Effecting Child Support Obligation, 27 A.L.R. 5th 540 (1992), and Scapin, supra, at p. 349.
In a relatively recent Superior Court decision, the court (Zarella, J.) conducted a thorough and thoughtful analysis of this issue and concluded that the obligor should not be relieved of his support obligation during the period of his incarceration. Charette v. Charette, 19 CONN. L. RPTR. 187 (April 30, 1997). The court there considered, and rejected for reasons which this Court finds to be sound, the various rationales upon which child support obligors have been granted relief as a result of incarceration. Although not bound by the decision of a coordinate court, this Court is persuaded by the sound reasoning in Charette that individuals such as the Defendant not be relieved of their child support obligation when, through their own misconduct, they are incarcerated. As the court in Charette observed, granting relief under such circumstances would run afoul of the principles established by our Supreme Court in Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977):
Although Charette was decided in the context of a final hearing in a dissolution of marriage action, the court there also had before it the obligor's then pending motion to modify pendente lite child support orders which had been filed following his incarceration. Hence, the precise issue before this Court was present in Charette and the reasoning contained in that decision is applicable herein.
[W]e emphasize again that modification is not warranted unless there has been a substantial change in the circumstances of either party occurring subsequent to the entry of the original decree . . . "Inability to pay" does not automatically entitle a party to a decrease of an alimony order. It must be excusable and not brought about by the defendant's own fault.
Sanchione, at p. 407. The Court went on to observe that the record was insufficient to determine "whether [the husband's] inability to pay was a result of his own extravagance, neglect, misconduct or other unacceptable reason . . ." (Emphasis added). Sanchione, at p. 407. An "inability to pay" occasioned by an obligor's arrest, conviction and incarceration for a criminal offense can scarcely be characterized as "excusable and not brought about by the defendant's own fault." To the contrary, an "inability to pay" occasioned by the obligor's arrest, conviction and incarceration for a minimal offense squarely falls within the ambit of "misconduct or other unacceptable reason" as that term was used in Sanchione.
Although Sanchione involved modification of an alimony order, the principles espoused therein are no less applicable to proceedings involving a modification of child support.
The Court also believes, as observed in Charette, supra, that relieving the Defendant of his child support obligation during the period of his incarceration inequitably places the entire support obligation on the Plaintiff. Giving relief to the Defendant under the present circumstances would relieve him, at least in part, of the consequences of his misconduct at the expense of the Plaintiff. The support arrearage accrued during the Defendant's incarceration can be paid down subsequent to his release through weekly arrearage payments in addition to the weekly support payments which he will be making at that time. It appears, from a review of the court file, that the Plaintiff has limited resources. The children will still be quite young when the Defendant is released and his payment at that time of support funds which are presently accruing will, in light of the Plaintiff's limited means, clearly inure to the benefit of the children and improve the quality of their lives.
Although it is likely that the children in this case will benefit from arrearage payments made at a future date, this fact is not essential to the Court's ruling. Even if the children were to attain the age of majority during the term of the Defendant's incarceration, as appears to have been likely in Charette, the accrual of a support arrearage with payment to be made to the Plaintiff in the future is an appropriate means of remedying the inequity that she shoulder both her share and the Defendant's share of the responsibility of supporting the child at this time. In balancing the equities, "an order of support which may not be reimbursed until some time in the future — even after the child reaches majority — is preferable than no order at all. Charette, supra, at p. 189.
Accordingly, the Defendant's motion for modification is denied. The Defendant's support payments will continue to accrue during the period of his incarceration with the accrued arrearage to be repaid in accordance with an arrearage order to be determined at a hearing to be held following his release. Commencing one month following Defendant's release, he shall resume payments of the current support order with a further payment of $10.00 per week toward the accrued arrearage until such time as the above-mentioned hearing is held to establish the amount of the arrearage and enter orders regarding payment of the same.
The Plaintiff did not appear in connection with these proceedings. The Court file contains a letter from the Plaintiff, dated November 19, 1997, wherein she indicates that she is unable to afford the trip (from Arizona) to appear in connection with Defendant's motion for modification. She claims that the Defendant's current spouse has been paying his child support obligation and, notwithstanding defendant's incarceration, requests an increase in the current child support order by "reason of his wealth." Although the Court has denied Defendant's motion for modification, it cannot modify, by way of increase, the current child support order either. First, the Plaintiff has not filed a proper motion seeking such an increase. Second, to the extent that the basis for such an increase is the alleged wealth of Defendant's current spouse, the support obligation is the obligation of the Defendant and not his current spouse. Third, the Plaintiff has submitted neither her own financial affidavit nor any admissible evidence to support an increase in the current child support order. Accordingly, to the extent that the Plaintiff's correspondence might be construed as a motion for modification, the request for an increase in the current child support order is denied.
Solomon, J.