Opinion
No. FA89 — 0359027
June 12, 1999
MEMORANDUM OF DECISION
The defendant mother has filed a motion to modify seeking an increase in the support order for her fifteen year old son. The plaintiff father opposes the motion, or in the alternative seeks a downward deviation.
Joshua Ryan August was born on January 30, 1984 to the defendant mother. In March, 1989, the plaintiff commenced this action seeking joint custody and visitation pursuant to General Statutes §§ 46b-59 and 46b-61. Procedurally, this matter is convoluted. The plaintiffs application does not include a prayer for relief requesting a finding of paternity. Rather, it is alleged that paternity had been "acknowledged" in a proceeding in geographical area 13. That case was not consolidated with the present case, nor is any documentation of the parentage adjudication included in the present file. Nevertheless, in April, 1989, the court, Kline, J., approved a pendente lite visitation agreement. In March, 1990, the matter was tried before the court, Goldstein, J. Both parties were represented by counsel, and the defendant filed a motion for support. The judgment is memorialized by means of a twelve page transcript in the file. There was no mention a parentage determination. Final visitation orders were entered. In addressing support, Judge Goldstein noted a pre-existing $40.00 per week order rendered by the geographical area court (Transcript, 3/13/90, p. 8). The judge ordered that effective August 1, 1989, the support order would be $60.00 per week, reducing to $45.00 per week on January 5, 1990. The judge specifically ordered that the geographical area court and the "Hartford Bureau of Support" be notified of the order.
On July 24, 1990, the court, Kline, J. found an arrearage of $1,345.50, plus $31.80 costs and $250.00 counsel fees. The court acknowledged a $1,400.00 lump sum payment, and ordered a $10.00 payment on the "new" arrearage, which was found to be $226.80.
There was no further significant activity in the file until 1998 when the support enforcement division cited the plaintiff for contempt. Both parties appeared for the contempt hearing on May 6, 1998. The contempt citation alleged a $40.00 per week support order, suggesting that Judge Goldstein's order to provide notice of the higher order in 1989 was not effectuated. The proceedings on May 6, 1998 further complicated the issue. The court, Trombley, F.S.M. found an arrearage to "the petitioner" (i.e. the defendant mother) in the amount of $6,360.00 and ordered the plaintiff to pay $40.00 current support plus $40.00 on the arrearage. No motion to modify was filed. This court surmises that the support enforcement division had not yet picked up on Judge Goldstein's order of $45.00 per week and erroneously reported the old G.A. 13 order of $40.00. Rather than modifying the order without a motion, Family Support Magistrate Trombley simply repeated the erroneous order reported to him. of course this scenario likely renders the arrearage finding erroneous as well. The court, Trombley, F.S.M., also increased the arrearage payment order to $40.00 per week and ordered the plaintiff to pay a $2,000.00 lump sum on or before October 7, 1998.
The plaintiff failed to comply with this order and instead filed a motion to modify seeking a reduction of his support order. At the continued hearing on the contempt matter the court, Sullivan, F.S.M., vacated the lump sum and terminated the contempt. The defendant then moved for a rehearing, alleging that Family Support Magistrate Sullivan mistakenly believed that the child of this relationship was in the plaintiffs custody (as opposed to the plaintiffs two other children) when he vacated the lump sum. This motion apparently was not addressed because by the time it was reached for hearing, Family Support Magistrate Sullivan had left the bench. A new contempt citation was issued, which was heard coincidentally with the plaintiffs motion to modify on February 11, 1999.
On February 11, 1999, after a lengthy evidential hearing, the court found Mr. Fredo in contempt. A $1,200 purge amount was set, incarceration was ordered but suspended upon ten specific conditions, which included, inter alia, payment of the purge amount. The plaintiffs motion to modify was denied. The court also appointed Attorney Rhonda Morra as counsel and guardian ad liter for the minor child, and admitted into evidence an account audit by the support enforcement division. The audit, which used Judge Goldstein's $45.00 order until May 12, 1998, after which Family Support Magistrate Trombley's $40.00 order was used, concluded that the arrearage owed to the defendant as of January 25, 1999 was $18,096.80.
An appeal to the Superior court was filed pursuant to General Statutes § 46b-231(n) but apparently not pursued.
Although this court finds it likely that the orders and arrearage finding by Family Support Magistrate Trombley were incorrect for the reasons stated, no motion has been filed, nor has a transcript of those proceedings been introduced. It is not appropriate for this court to act sua sponte and in the absence of an appropriate motion Accordingly, the court declines to make any arrearage finding at this time pending the filing of an appropriate motion.
The present motion resulted in another evidential hearing held on April 22, 1999 before the undersigned. The plaintiff claims his only income is Temporary Family Assistance for two children of another relationship. The defendant and the guardian ad litem for Joshua claim that the plaintiff has a substantial earning capacity which should be utilized to provide reasonable support for Joshua.
The burden of proof is on the party seeking the modification. Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); Richard v. Richard, 23 Conn. App. 58, 63, 579 A.2d 110 (1990); Mansfield v. Haynes, 12 S.M.D. ___ (1998); Moffit v. Moffit, 12 S.M.D. ___ (1998); Danford v. Symonds, 12 S.M.D. ___ (1998); Murray v. Stone, 11 S.M.D. 149, 150 (1997); O'Dell v. O'Dell, 9 S.M.D. 7 (1995); Meyer v. Meyer, 7 S.M.D. 49, 52 (1993); Taylor v. Taylor, 7 S.M.D. 43, 44 (1993); Yochum v. Yochum, 6 S.M.D. 75, 80 (1992); Noble v. Noble, 6 S.M.D. 31, 32 (1992 Berluti v. Berluti, 5 S.MD. 377, 381 (1991); Dubitzky v. Dubitzky, 5 S.M.D. 261, 271 (1991); Monahan v. Monahan, 4 S.M.D. 223, 227 (1990).
The moving party must demonstrate "that continued operation of the original order would be unfair or improper." McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980); Harlan v. Harlan, 5 Conn. App. 355, 357, 496 A.2d 129 (1985); Mansfield v. Haynes, 12 S.M.D. __ (1998); Moffit v. Moffit, 12 S.M.D. __ (1998); Danford v. Symonds, 12 S.M.D. __ (1998); Murray v. Stone, 11 S.M.D. 149, 151 (1997); Kimery v. Kimery, 9 S.M.D. 54, 57 (1995); Taylor v. Taylor, 7 S.M.D. 43, 45 (1993); Yochum v. Yochum, 6 S.M.D. 75, 80 (1992); Noble v. Noble, 6 S.M.D. 31, 33 (1992); Kraynak v. Godfrey, 5 S.M.D. 250, 251 (1991); Romaniello v. Roinamello, 5 S.M.D. 87, 91 (1991). "The party seeking modification must clearly and definitely show individual facts and circumstances which have substantially changed." McGuinness v. McGuinness, CT Page 8001 185 Conn. 7, 10, 440 A.2d 804 (1981).
"In determining whether there is a substantial change in circumstances, the court considers all evidence back to the most recent court order." Borkowski v. Borkowski, 228 Conn. 729, 741, 638 A.2d 1060 (1994); Danford v. Symonds, 12 S.M.D. ___ (1998); Swain v. Swain, 10 S.M.D. 140, 142 (1996); Thomas v. Thomas, 8 S.M.D. 196, 198 (1994). For purposes of comparison in this case, it matters not whether the comparison is made to the circumstances in 1989 (Judge Goldstein's $45.00 per week order) or in May, 1998 (Family Support Magistrate Trombley's $40.00 support order) since the changes in financial circumstances to be analyzed occurred after the later date.
Prior to late July, 1998, the. plaintiff was employed by Kasden Fuel Company. It is uncontroverted that he voluntarily left this employment. At least at the time, Kasden characterized his departure as "temporary leave" and apparently anticipate his return to work. Minor child's Exhibit FF. Subsequently, he obtained part-time work for Handyman Connection earning from $11.25 to $15.38 per hour depending on the nature of the work. This employer also indicated that he "still has a position with us once his day care situation is resolved." Minor child's Exhibit AA. The court finds that the plaintiff has a substantial earning capacity.
It is well established that a court may consider a party's earning capacity rather than actual income in computing a support order. Johnson v. Johnson, 185 Conn. 573, 576, 441 A.2d 578 (1981); Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980); Siracusa v. Siracusa, 30 Conn. App. 560, 566, 621 A.2d 309 (1993); Carey v. Carey, 29 Conn. App. 436, 440, 615 A.2d 516 (1992 Hart v. Hart, 19 Conn. App. 91, 94, 561 A.2d 151 (1989); Mansfield v. Haynes, 12 S.M.D. ___ (1998); Moffit v. Moffit, 12 S.M.D. __ (1998); Danford v. Symonds, 12 S.M.D. __ (1998); Murray v. Stone, 11 S.M.D. 149, 152 (1997), Brown v. Brown, 11 S.M.D. 140, 147 (1997); Englemann v. Englemann, 10 S.M.D. 90, 147 (1997); Henja v. Brown, 10 S.M.D. 42, 147 (1996); Kimery v. Kimery, 9 S.M.D. 54, 57 (1995); Jodoin v. Jodoin, 9 S.M.D. 7, 8 (1995); Hay v. Hay, 8 S.M.D. 51, 54 (1994); Guidone v. Moschette, 8 S.M.D. 10, 11 (1994); Webster v. Webster, 8 S.M.D. 4, 5 (1994); Campbell v. Scott, 7 S.M.D. 8, 12, 8 CSCR 507, 11 Conn.Fam.L.J. 71 (1993); Bardsley v. Bardsley, 6 S.M.D. 112, 116 (1992); Ouellette v. Ouellette, 6 S.M.D. 83, 85 (1992). The child support guidelines provide for deviation where the court finds "[o]ther financial resources available to a parent." A parent's earning capacity is specifically included in this subsection. Regs., Conn. State Agencies § 46b-215a-3-(b)(1)(B).
The defendant claims he is unable to carry on full time employment commensurate with his earning capacity because of his parenting responsibilities for two children of a subsequent relationship. Mr. Fredo is the father of two children by Dorothy Crawford: two year old Veronica Fredo, and Miranda Sue Crawford, who is now five. On September 20, 1998, the juvenile session of the Superior Court at Willimantic, Mack, J., committed custody of both minor children to Mr. Fredo. (Plaintiffs Exhibits K and L).
The parentage of these two children was hotly disputed at the hearing. Initially, the plaintiff relied on the juvenile session custody order. The defendant and counsel for Joshua argue that these documents do not prove paternity, particularly since Connecticut law does not preclude vesting custody of children with a non-parent At the conclusion of the hearing. Over vigorous objection of counsel for the minor child, the court gave all parties leave to file certified copies of any record addressing the parentage of Veronica and Miranda. Joshua's attorney filed a copy of a sworn affirmation or paternity executed by Dorothy Crawford (Minor Child's Exhibit GC nominating one William McCormick as Miranda's father. This document is not legally sufficient to establish Mr. McCormick as Miranda's father. It is not accompanied by a sworn acknowledgment of paternity end is not filed with the Superior Court as required by General Statutes § 46b-172. The plaintiff submitted certified records from the Superior Court, judicial district of Windham including doc. no. FA 97 0056126, Crawford v. Fredo, a fully executed and filed acknowledgment for Veronica and a similar document for Miranda filed under doc. no. FA99 — 0060455. These documents are sufficient to legally and conclusively establish Dean Fredo as the father of both Veronica and Miranda.
Veronica suffers from asthma. The severity of her condition, its treatment and prognosis were disputed by the parties. The plaintiff claims that Veronica requires constant attention and that he personally is the person best trained to administer her care. Counsel for the minor child argues that Veronica's condition as improved substantially, that the prognosis suggests continued improvement, and that an appropriately qualified day care center or caregiver can provide for her needs so that Mr. Fredo can reenter the job market and provide financially for all of his children. This improvement, it is argued, is a substantial change of circumstances such that the plaintiff no longer has any impediment to the full exercise of his earning capacity.
It is up to this court, as the trier of fact, to determine the credibility of witnesses and the weigh their testimony and that of the documentary evidence. Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); Riccio v. Abate, 176 Conn. 415. 418, 407 A.2d 1005 (1979); Raia v. Topehius, 165 Conn. 231, 235, 332 A.2d 93 (1973); Mansfield v. Haynes, 12 S.M.D. ___ (1998); Danford v. Symonds, 12 S.M.D. ___ (1998); Kimery v. Kimery, 9 S.M.D. 54, 57 (1995); O'Dell v. O'Dell, 9 S.M.D. 7, 8 (1995); Hepburn v. Hepburn, 8 S.M.D. 126, 133 (1994); Fretina v. Fretina, 5 S.M.D. 139, 142 (1991). The court has the right to accept part and disregard part of the testimony of any witness. Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Rood v. Russo, 161 Conn. 1, 3, 283 A.2d 220 (1971); Berluti v. Berluti, 5 S.M.D. 377, 382 (1991).
The court finds that the weight of the evidence more strongly supports the defendant mother's position and that of the minor child. The court has carefully examined the medical reports and finds that while it may have been appropriate when Mr. Fredo first obtained custody that he became the primary and full-time caregiver for Veronica, her condition has stabilized to the point where alternate care arrangements can be made.
In November, 1998, in support of an application for medical assistance, the case worker opined: "Child need full time close care dayly (sic)" and "child best care is with her Father Dean Fredo". Plaintiffs Exhibit fi. Veronica's pediatrician, Dr. Thomas Gormn stated: "Child has asthma requiring frequent treatments during day." Plaintiffs Exhibit F. By April 14, 1999, however, while dearly special needs still exist, the reports suggest significant improvement Dr. Gorin writes: "Veronica Fredo has asthma that requires special care and training. Mr. Fredo has been doing this for Veronica so ho has the knowledge to teach a provider what needs to be done for her. She is ok to be in a daycare center as her condition is now stable." Minor Child's Exhibit EE Jennifer Nichols, Pulmonary Coordinator at Connecticut Children's Medical Center stated, in part "[P]resently, she is under good control. In fact, she is having far less symptoms on her current therapy. . . . There is no reason from our standpoint that she cannot be in a daycare situation as long as this level of care can be provided." Minor Child's Exhibit DD.
The process of finding alternative care arrangements for Veronica and reintroducing the plaintiff to income-producing vocations actually was jump-started by the earlier contempt proceedings. On February 11, 1999 this court held Mr. Fredo in contempt for his failure to pay the support order for Joshua and. released him on condition of his complying with ten rigorous conditions, several of which were addressed to these very issues. To the plaintiffs credit, by the date of the present hearing, he had complied with. all the conditions. He even has the genesis of a plan to work himself back into full time employment although less urgently than the situation requires.
In addition to payment and notice requirements, Mr. Predo was required inter ala, to dingently seek employment either through home occupation or outside the home that would not interfere with his care of Veronica; pursue child support from Ms. Crawford; and seek alternative caregivers for Veronica
In determining the appropriate support order under the unique circumstances of this case, the child support guidelines are not instructive. Strictly speaking, the support order would be zero, since plaintiffs income, primarily from public assistance, is either exempt or below the self-support reserve. Clearly, strict application of the guidelines is inequitable and inappropriate.
The court has carefully considered that all of the factors set forth in General Statutes § 46b-84(d) and the deviation factors in Regs., Conn. State Agencies § 46b-215a-3 including specifically (but not limited to) the occupation, earning capacity, vocational skills and employability of each of the parents, the needs of Joshua, the needs of Veronica and Miranda including Veronica's improving but still significant medical needs day care expenses and the financial impact of the plaintiffs likely incremental resumption of full employment.
Regs., Conn. State Agencies § 46b-215a-3-(b)(1) (B).
Regs., Conn. State Agencies § 46b-215a-3-(b)(6) (E).
Regs., Conn. State Agencies § 46b-215a-3-(b)(4)(B). Counsel for Joshua objected to this deviation being considered because Veronica gets Social Security in her own name and Miranda receives Temporary Family Assistance (TFA) from the State The court does consider these grants as mitigating the amount of this deviation, but finds that the needs of these two children are not met unless supplemented by the parents. Furthermore, once Mr. Fredo returns to employment as he is required to do under the continuing orders of this court dating from February 11, 1999, the TFA grant for Miranda will be terminated.
Regs., Conn. State Agencies § 46b-215a-3-(b)(4) and (6)(F). Extraordinary medical needs are also considered in deviation criteria Regs., Conn. State Agencies § 46b-225 a-3-(b)(2)(B), and § 46b-215a-3-(b)(3)(q) although these latter sections may not apply under the specific fact circumstances.
Regs., Conn. State Agencies § 46b-215a-3-(b)(6)(B) and (6)(F).
Regs., Conn. State Agencies § 46b-215a-3-(b)(6)(F), "Other equitable factors".
The motion to modify is granted. The support order is temporarily modified to $62.00 per week current support plus $8.00 on the arrearage effective April 2, 1999 through June 30, 1999. The order will increase to a temporary order of $73 per week current support plus S 12.00 per week on the arrearage effective July 1, 1999 and continuing through September 30, 1999. The order will increase further to $80.00 per week temporary current support plus $12.00 per week on the arrearage effective October 1, 1999 and continuing through December 31, 1999. The order will increase to a permanent current support order of $88.00 per week current support plus $14.00 per week on the arrearage (total $102.00 per week) effective January 1, 2000.
At least one Superior Court decision on an appeal from this division raised questions as to this division's jurisdiction to enter a temporary order or temporary modification. Greene v Bynum, Superior Court," judicial district of New Haven at New Haven, doc. no. 255909 (February 21, 1996, Alander, J.), reversed on unrelated grounds, 46 Conn. App. 1, 698 A.2d 334 (1997). Subsequently it was noted that the true import of the case was "that whether or not the order is temporary, due process requires a written motion, notice to all parties, an opportunity for a hearing. and findings sufficient to meet the statutory criteria, before that order can be further altered. "it is improper for a court to grant an oral motion to modify child support where a party is given no written notice of or an opportunity to be heard on the request for modification.' (citations omitted)" DeSenti v. DeSenti, 11 S.M.D. 214 (1997); see also Connolly v. Connolly 191 Conn. 468, 464 A.2d 837 (1983); see also Costello v. Costello, 186 Conn. 773, 776-77, 443 A.2d 1282 (1982); Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981); Litvaitis v. Litvaitis, 162 Conn. 540, 548, 295 A.2d 519 (1972); Winick v. Winick, 153 Conn. 294, 297, 216 A.2d 185 (1965); Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964); Trella v. Trella, 24 Conn. App. 219, 221, 587 A.2d 162 (1991); Hurtado v. Hurtado, 14 Conn. App. 296, 306, 541 A.2d 873 (1988); Ammirata v. Ammirata, 5 Conn. App. 198, 198, 201-202. 497 A.2d 768 (1985); Mansfield v. Haynes, 12 S.M.D. ___ (1998); Cupe v. Anderson, Superior Court, Judicial District of Hartford, doc. no. FA97 — 0624481 (Barall, J.). A further difficulty with the type of temporary order in Greene v. Bynum is that if the order is not modified, the parties are left with an open-ended "temporary" order. This court takes judicial notice of many instances of "temporary" orders that have remained in effect for years, putting into question exactly how such an order is "temporary". Here this court is entering temporary orders that are closed-ended. The term of each temporary period is delineated as i the final permanent order. The court does not contemplate alteration of these orders without a formal motion to modify and full modification procedures. This follows the procedure sanctioned by the Supreme Court in Johnson v. Johnson, 185 Conn. 573, 441 A.2d 578 (1981) and incidentally, by Judge Goldstein ten years ago in the present case.
Counsel for the minor child and for the plaintiff, in response to a trial management order by the Court, submitted written proposed orders. Remarkably, both sides came up with $76.00 as an appropriate order based on an earning capacity deviation. (The sides differ, however, on the appropriate adjustment for the needs of Mr. Fredo's other children) The reasoning is explained in the Attorney Morra's proposed orders submission. Based on his last employment, she reasons that he averaged 18.5 hours per week at an average of $13.13 per hour. Therefore, she imputs his ability to replicate that earning capacity and to supplement it with 21.5 hours of home employment at $6.00 per hour. Thus he would average $371.91 per week gross or about $300.00 per week net Reference to the guidelines table yields a $76.00 per week order. This court disagrees that this computation accurately reflects the plaintiffs ultimate earning capacity. Minor child's Exhibit AA disclosed the plaintiff's income during August through October, 1998 through part-time work for Handyman Connection, n He earned between $1250 and $15.38 per hour. it is revealing that the only 40 hour week during this period earned him $15.00 per hour. Moreover, during one week, he worked 52 hours and earned $800. The court finds, therefore, that the plaintiff has an earning capacity of at least $14.50 per hour. Although he will likely do it incrementally, this court has full confidence that the plaintiff is capable of and will tend to Veronica's special needs and work full-time commensurate with his earning capacity. Thus this court finds that based on earning capacity alone, without consideration of offsetting downward deviations, the child support order would be in the range of $115.00 to $120.00 per week. Obviously, the multi-step order is intended to address incremental return to the job market and incremental introduction of alternative caregiving for Veronica.
BY THE COURT
Harris T. LiIshitz Family Support Magistrate