Summary
In Lively v. Barnaby, 18 S.M.D. ___, 2004 Ct.Sup. 14329 (2004), the court concluded that the act was intended to apply retrospectively.
Summary of this case from Biafore v. BozemanOpinion
No. FA96-0062215
September 7, 2004
MEMORANDUM OF DECISION
Although never married to each other, the plaintiff mother and defendant father have three minor children issue of their relationship. Parentage of the youngest child, Megan Elizabeth Barnaby, born September 19, 1996 was established by means of an Acknowledgment of Paternity executed by both parents a few days after her birth and filed in the captioned matter. There was no claim for support at the time, apparently because the parties resided together as an intact family.
In March 2003 the State commenced a separate paternity action regarding the other two children, Kayla M. Barnaby, born November 3, 1991, and Tyler M. Barnaby, born February 13, 1995. The defendant appeared and was afforded court-appointed counsel at his request. Upon the defendant's motion, genetic tests were ordered. The laboratory reports indicated that with regard to Tyler, the combined paternity index was 416,236 to 1 (probability 99.99%+) and with regard to Kayla, the combined paternity index was 2,914,005 to 1 (99.99%+). After a further hearing, judgment entered establishing the defendant as the father of Kayla and Tyler.
The State moved to consolidate the two files and also filed a motion for support for all three children. The court, Wihbey, F.S.M., granted the motion to consolidate and the files have now been merged into one under the captioned title and docket number. After several continuances, a trial was held before this court on the issues of support and arrearages for past due support.
The matter was specially assigned for the contested evidential hearing. At the assigned time the plaintiff, assistant attorney general and defense counsel were present and ready for trial. However, the defendant was not present, claiming that he needed to be present for "semi-emergency" surgery to his present wife. The court instructed counsel to contact the medical facility and get word to the defendant that a continuance would not be granted and that trial would commence whether or not he was present. The defendant did not respond or attend court, and his case was conducted by counsel.
According to the unrefuted testimony of the plaintiff, the parties separated at Christmas 1998. All three children resided with the plaintiff mother and have continued to do so ever since. She denies receiving any child support from the defendant father since they separated. The plaintiff has received public assistance for the children intermittently from September 1996 through the end of July 2003. The total amount of State cash assistance paid was $13,451.64.
The defendant claims that he is disabled, and that his sole source of income is Supplemental Security Income (SSI). He claims that by law his support order should be zero and no arrearage may be assessed against him. The State and petitioner contend that he has a history of under-the-table employment, has an earning capacity, and accordingly should be ordered to pay child support and charged an arrearage for past due support. The court's task is to sort out the conflicting claims and determine the effect of Public Act No. 03-130 as well as relevant case law to the question of child support. The court must also resolve whether Public Act No. 03-130 applies retrospectively and whether an arrearage may be found based on deviation factors other than earning capacity.
I
First the Court must determine the current support order for the three children. Support must be determined utilizing the Child Support Guidelines which "require the court to first determine the presumptive support order prior to applying any deviation criteria. Regs., Conn.State Agencies § 46b-215a-3-(a); Arias v. Macedo, 14 S.M.D. 6 Conn.Ops. 1335, 2000 Ct.Sup. 12916 (2000)." Perez v. Vazquez, 16 S.M.D. 2002 Ct.Sup. 5046 (2002).
In order to apply the Child Support Guidelines to determine the presumptive support order, the court must first ascertain the incomes of each of the parties. Each party submitted a sworn financial affidavit at the initial hearing. The plaintiff mother's financial affidavit discloses that she works at Whole Donut in Enfield earning $252.00 gross per week with a net weekly income of $232.10.
The defendant father claims to be disabled. The defendant father disclosed no employment on his financial affidavit, but listed under "all other income" "SSI" $11.13 per week and "SSD" $99.00 per week. He states his total weekly net income as $60.19. The plaintiff claims that the defendant receives both Supplemental Security Income (SSI) and Social Security Disability (SSD). The State's witness professes not to know the nature of the defendant's Social Security benefits. A June 2, 2003 document from the Social Security Administration (Defendant's Exhibit 1) discloses SSI benefits which commenced December 1992. The document also states: "Our records show that you became disabled on 05/01/91."
The defendant did not itemize deductions and there is no indication of how the purported $110.13 weekly gross income reduced to $60.19.
The statement from the Social Security Administration clearly states that the award paid to the defendant is Supplemental Security Income (SSI). The difference is crucial because under our law, Social Security Disability payments (SSD) are includable as income for child support purposes; Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231 (1998); while SSI is wholly excluded. Regs., Conn. State Agencies § 46b-215a-1(11)(A)(ix) and (B)(ii); Marrocco v. Giardino, 225 Conn. 617 (2001), 767 A.2d 720 (2001); Allard v. Allard, Superior Court, Judicial District of New London at Norwich, Doc. No. FA86-0086656, 2002 Ct.Sup. 14163 (Swienton, J., Nov. 4, 2002).
Section 46b-215a-1 of the Regulations of Connecticut State Agencies provides in relevant part: "Definitions: As used in sections 46b-215a-1, 46b-215a-2a, 46b-215a-3, 46b-215a-4a and 46b-215a-5a . . . (11) `Gross income' means the average weekly earned and unearned income from all sources before deductions, including but not limited to the terms listed in subparagraph (a) of this subdivision, but excluding the items listed in subparagraph (b) of this subdivision. (A) Inclusions: The gross income inclusions are: (i) salary; (ii) hourly wages for regular, overtime, and additional employment up to a maximum of 52 total paid hours per week; (iii) commissions, bonuses and tips; (iv) profit sharing, deferred compensation and severance pay; (v) employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of or in addition to salary or wages); (vi) military personnel fringe benefit payments; (vii) benefits received in place of earned income including, but not limited to, workers' compensation benefits, unemployment insurance benefits, strike pay and disability insurance benefits; (viii) veterans' benefits; (ix) social security benefits (excluding Supplemental Security Income [SSI]), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined; (x) net proceeds from contractual agreements; (xi) pension and retirement income; (xii) rental income after deduction of reasonable and necessary expenses; (xiii) estate or trust income; (xiv) royalties; (xv) interest, dividends and annuities; (xvi) self-employment earnings, after deduction of all reasonable and necessary business expenses; (xvii) alimony being paid by an individual who is not a party to the support determination; (xviii) regularly recurring gifts, prizes, and lottery and gambling winnings (except as provided in paragraph [B] [iv] of this subdivision); and (xix) education grants (including fellowships or subsidies that are available for personal living expenses).
"(B) Exclusions: The gross income exclusions are: (i) support received on behalf of a child who is living in the home of the parent whose income is being determined; (ii) federal, state and local public assistance grants; (iii) earned income tax credit; and (iv) the income and regularly recurring contributions or gifts of a spouse or domestic partner . . ." (emphasis added).
Despite the admission by the defendant on his financial affidavit of receiving SSD, it seems clear from the records of the Social Security Administration that his entire award is SSI.
Notwithstanding the statement from the Social Security Administration, the State and the plaintiff claim that the defendant is not disabled; that he in fact has and does engage in unreported employment for remuneration; that he has an ability to pay child support based on earning capacity; that any inability on his part to realize his full earning potential is due to his own self-imposed actions; and that he has or had substantial assets which should be considered in determining the child support order and arrearage.
The State and the plaintiff produced evidence they claim establishes that the defendant engages in unreported employment. The defendant's brother, Leo Barnaby, testified that he employed the defendant at various times in landscaping work, construction work, painting, snowplowing and odd jobs. He paid the defendant "twenty dollars here; twenty dollars there." His brother worked with him on this basis for about three years.
Bruce Davis testified that he had knowledge of the defendant doing subcontracted repair work at a Dunkin' Donuts outlet.
The plaintiff testified that he worked with his brother Leo five days a week and "had quite a bit of money on him . . . he'd be whipping out wads like that constantly." Transcript, 4/27/04, p. 24. She also claims she observed him doing painting or construction work at Dunkin' Donuts, Ice Cream Depot and Lark's Cafe. She also claimed to have seen him working at Family Dollar stocking shelves.
Finally, the Department of Social Services investigator was able to obtain verification of employment at Family Dollar. The defendant earned $6.40 per hour and held the job for just two weeks.
The plaintiff and the State rely on the Appellate Court's decision in Tevolini v. Tevolini, 66 Conn.App. 16, 783 A.2d 1157 (2001), to support their argument that in spite of the disability determination the court should either find that the defendant enjoys actual although unreported income, or alternatively impute an earning capacity to him. The Tevolini court held that the Social Security award was not determinative of the defendant's disability and that the plaintiff could not be denied an opportunity to explore the issue of the defendant's health at trial. "We conclude that the [trial] court could not properly infer that the defendant's qualification for and receipt of social security disability payments foreclosed discussion as to the issue of her health . . ." Id., 30.
There are about half a dozen cases that appear to follow Tevolini. In Santoro v. Santoro, Superior Court, Judicial District of Hartford at Hartford, Doc. No. FA 95-0546022, 33 Conn.L.Rptr. 418, 2002 Ct.Sup. 16399 (Robaina, J., Dec. 13, 2002), the court held that "[a] citation to a decision of the Social Security Administration indicating that a person is disabled is not sufficient." See also Suchinski v. Conely, Superior Court, Judicial District of Waterbury at Waterbury, Doc. No. FA02-0172508, 2003 Ct.Sup. 14104 (Leheny, J., Dec. 9, 2003); Rio v. Rio, Superior Court, Judicial District of Middlesex at Middletown FA-03-0100766, 2003 Ct. Sup. 13141 (Aurigemma, J., Nov. 6, 2003); Fournier-Lefebre v. LeFebvre, Superior Court, Judicial District of Windham at Putnam, Doc. No. FA-01-0067046, 2004 Ct. Sup. 610 (Swienton, J., Jan. 6, 2004) ("Although the plaintiff is presently receiving social security disability, there was no credible evidence to indicate her inability to obtain any type of employment either at present or in the future").
The defendant relies on the Supreme Court's decision in Marrocco v. Giardino, 255 Conn. 617, 767 A.2d 720 (2001), and recent statute, Public Act No. 03-130 § 1(b) as essentially shielding him from any child support liability. "Under federal law, 42 U.S.C. § 407, an obligor cannot be compelled to pay child support out of SSI disability payments. This statute bars child support orders from a person whose only income is from SSI benefits. See Davis v. Office of Support Enforcement, 341 Ark. 349, 358, 20 S.W.3d 273 (2000). SSI benefits and any state supplementation are excluded from the determination of gross income for purposes of ascertaining child support. `. . . SSI is a federal social welfare program designed to provide a guaranteed minimum income level necessary for the subsistence of individuals who cannot work because of age, blindness or disability.' Marrocco v. Giardino, 255 Conn. 617, 630, 767 A.2d 720 (2001), citing Schweiker v. Wilson, 450 U.S. 221, 223, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Child Support and Arrearage Guidelines (1994) preamble, Sec. (f)(1)(c), p. viii, Young v. Young, 802 S.W.2d 594, 598 (1990)." Allard v. Allard, Superior Court, Judicial District of New London at Norwich, Doc. No. FA86-0086656, 2002 Ct.Sup. 14163 (Swienton, J., Nov. 4, 2002).
Although it would appear that Allard contradicts Tevolini, Judge Swienton added a footnote that specifically disclaimed any such contradiction. Thus presumably the adverse party would still be entitled to provide evidence of actual earnings or earning capacity to rebut the claim of disability. However, it is hard to fathom how a court could impute an earning capacity and set a support order based on it while vouchsafing all SSI benefits from being used to pay child support.
The General Assembly made the distinction academic by passage of Public Act No. 03-130, which inter alia precludes the court from deviating by reason of earning capacity when the obligor receives specific types of public assistance benefits including SSI. The legislative history of the public act makes it very clear that the intent of the act was to take SSI "out of the mix" in determining child support. Representative Stone testified at the May 20, 2003 public hearing on the act and stated that "[i]n this particular case and with this particular bill, what we're saying is that if it's determined that an obligor of child support is eligible and is receiving those benefits from the federal government, that the magistrate or the court, in awarding a child support order, cannot look to that income as earning capacity or as computed [sic] income to the obligor . . . It takes this disability income out of the mix for determining child support." 46 H.R. Proc., Pt. 11, 2003 Sess., pp. 3459-60, Remarks of Representative Christopher R. Stone.
Public Act No. 03-130 provides in relevant part:
"(b) In any determination pursuant to subsection (a) of this section, when a party has been determined by the Social Security Administration, or a state agency authorized to award disability benefits, to qualify for disability benefits under the federal Supplemental Security Income Program, the Social Security disability program, the state supplement to the federal Supplemental Security Income Program, the state-administered general assistance program or the general assistance program, parental earning capacity shall not be a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income."
Representative Stone's remarks also make it clear that the case law was considered in making the change; "There have been cases in the State of Connecticut which have made just that finding. However, there still are some magistrates who notwithstanding the case law, do award child support based upon disability payments. Those cases, for anyone's reference, are Morocco v. Guardino and Allard v. Allard. This bill is a common sense bill to what is, at times, a very difficult problem . . . I think it's fair, given the very strenuous, very strict guidelines for receiving SSI and SSD payments from the federal government." 46 H.R. Proc., Pt. 11, 2003 Sess., pp. 3459-60, remarks of Representative Christopher R. Stone.
In the present case Public Act No. 03-130 precludes the court from deviating based on earning capacity. As to the claims of actual income, most of the work instances established with any degree of credibility are too remote to be reasonably considered as evidence of present employment. The evidence is simply insufficient to establish present employment, much less how much the defendant might be earning at such employment. Ironically, the evidence is sufficient to establish an ability to work and hence an earning capacity, but a deviation based on such finding is precluded by the public act. The court finds no other reason to deviate on the current support order. Accordingly the court finds the defendant's income is exempt for child support purposes. The presumptive guidelines amount is zero. The current support order is set at $0 per week plus $0 per week on the arrearage.
The clear language of the statute allows actual earnings to be considered for calculating child support not withstanding the disability determination by the other agency. In addition to the unambiguous language, the legislative history, including proponent comments at public hearings support the inclusion of such income. For example, the report of the judiciary committee summarizes the written testimony of Raphael L. Podolsky, Legal Assistance Resource Center of Connecticut Inc., as follows: "This legislation attempts to resolve these problems by precluding any such persons from having the earning capacity imputed onto them under a given deviation criterion. The legislation will apply only where a government agency has made determination of a disability. The bill shall not in any way preclude the counting of actual income earned by a disabled person for the purposes of calculating child support liability." (Emphasis added.) Conn. Joint Standing Committee, Judiciary, Report No. 590.
The defendant's work for Leo Barnaby occurred from 1994 through 1997, Transcript p. 11, which is prior to the time the parties separated. While the plaintiff claims a number of recent jobs, the court finds her testimony as to the dates of the claimed employment to be inconsistent at best. For example, in her testimony she first placed him working at the Ice Cream Depot and Lark's Cafe as being in 2003. She placed him at Family Dollar at "about the same time" but later places that employment as in 2002. However, the Department of' Social Services investigator places that employment as in February 2001.
II
Next the court must determine the defendant's liability for past due support or arrearage. Meghan's parentage was established by an Acknowledgment of Paternity filed with this court on October 30, 1996. Consequently, the defendant is potentially liable for support for Meghan back to her date of birth, September 19, 1996. However, the parties were together at that time. Past due support for Meghan is calculated back to December 25, 1998 when the parties separated. As to Kayla and Tyler, even though they are both older than Meghan, their paternity was established later through the paternity action. Thus, their past due support is calculated back to April 7, 2000, which is three years back from the date of service of the paternity action. General Statutes § 46b-160(a); Procter v. Culver, 17 S.M.D. (2003).
The threshold question is whether the preclusion of consideration for earning capacity deviations for an SSI recipient applies to calculation of arrearages accruing prior to the effective date of Public Act 03-130 which was October 1, 2003. In other words, the issue is whether the public act is to be applied retrospectively or prospectively. The court concludes that the act was intended to apply retrospectively and therefore the court is precluded from considering earning capacity in computing the arrearage.
The plaintiff and the State rely on this court's recent decision Ballinger v. Wingate, 18 S.M.D. 2004 Ct.Sup. 6140 (2004), as authority for its argument against retroactive application of the earning capacity preclusion. In Ballinger, the court construed Public Act No. 03-258, which requires the court to establish a support order for an incarcerated or institutionalized obligor based upon the obligor's actual income without applying any deviation. The court concluded that Public Act No. 03-258 applies prospectively only. Therefore, an incarcerated obligor's current support may not be based on an earning capacity deviation, but the arrearage for past support prior to the effective date of the act can utilize this deviation. For reasons hereafter set forth, the court reaches a different conclusion with regard to Public Act. No. 03-130.
"Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. (Citation omitted.) In order to determine the legislative intent, we utilize well-established rules of statutory construction." Andersen Consulting, LLP v. Gavin, 255 Conn. 498, 517, 767 A.2d 692 (2001); Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 691, 755 A.2d 850 (2000). Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 718, 714 A.2d 1209 (1998). Indeed, our courts have uniformly interpreted General Statutes § 55-3 as a rule of presumed legislative intent that statutes affecting substantive fights shall apply prospectively only. Coley v. Camden Associates, Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). See also Nash v. Yap, 247 Conn. 638, 646 726 A.2d 92 (1999); Gil v. Courthouse One, 239 Conn. 676, 686, 687 A.2d 146 (1997); Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 483-85, 659 A.2d 1188 (1995); State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986); Renz v. Allstate Ins. Co., 61 Conn.App. 336, 346, 763 A.2d 1072 (2001); Ballinger v. Wingate, 18 S.M.D. 2004 Ct.Sup. 6140 (2004).
General Statutes § 55-3 states: "Limitation of effect of certain acts. No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect."
"This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively . . . Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect . . . We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect . . . (Citation omitted; internal quotation marks omitted.) Oxford Tire Supply v. Commissioner of Revenue Services, supra, 253 Conn. 691-92.
"Statements of purpose, committee reports, and floor debate are all legitimate sources of legislative intent. See, e.g., Nationwide Ins. Co. v. Gode, 187 Conn. 386, 391 n. 5, 446 A.2d 1059 (1982) (floor debate); Tax Commissioner v. Estate of Bissell, supra, [ 173 Conn. 232, 246,] 244-45, [ 377 A.2d 305 (1977)] (statement of purpose); Connecticut Rural Roads Improvement Assn. v. Hurley, 124 Conn. 20, 26, 197 A. 90 (1938) (committee reports)." Burge v. Stonington, 219 Conn. 581, 594-95, 594 A.2d 945 (1991).
The legislative history of senate bill number 859 which became Public Act No. 03-130 suggests that the statute was intended to elucidate existing law by settling what appeared to be conflicting court decisions. "This legislation would clarify that, if an obligor (i.e., noncustodial parent) has been determined to be disabled by an agency such as the Social Security Administration or the state, a family support magistrate applying the given Child Support Guidelines shall be unable to ignore this determination by imputing earning capacity to the obligor as a deviation criterion." (Emphasis added.) Conn. Joint Standing Committee, Judiciary, Report No. 590. In addition, Senator McDonald stated that the " bill is intended to make clear that if a non-custodial parent has been determined to be disabled by the Social Security Administration or the state, a family support magistrate applying the child support guidelines cannot ignore that determination by forcing the non-custodial parent to reprove that disability in the child support context." (Emphasis added.) 46 S.Proc., Pt. 6, 2003 Sess., p. 1813, remarks of Senator Andrew McDonald. Witness testimony at the public hearing also suggests that the legislation was intended to clarify what was perceived to be existing law rather than making new law. Accordingly the court is precluded from considering earning capacity in computing the arrearage.
This contrasts with the legislative history of Public Act No. 03-258, which the court found to create new substantive law.
The court finds the statements of legislators rather than those of witnesses to be generally more reliable in determining legislative intent. This bill however, was requested legislation, and statements by proponents may provide some insight into the intent. Lucy Potter, an attorney at Greater Hartford Legal Assistance, and also a present member of the Child Support Guidelines Commission testified before the judiciary committee on February 10, 2003 and stated that the act "limits the application of deviation criteria under Connecticut's Child Support Guidelines. In situations where the person for who support is sought, has qualified for disability based welfare benefits, be an SSI recipient, Social Security Disability, SAGA recipient or state sub. This sort of income already doesn't count under the Child Support Guidelines as they already exist. And the Connecticut Supreme Court ruled about a year or two ago that it was not proper to — when somebody had SSI as their only source of income, a magistrate or a judge cannot, on the basis of other equitable factors, or best interest of the child, deviate and find that this person has income that should count even though they have this non-countable income. But what we've been finding since that decision, there have been many instances in which, particularly support magistrates will impute income to people whose only source of income is SSI and in effect, the burden is then put on the disabled person there in the support determination to prove that he or she has no earning capacity. And it's very difficult because these are destitute people, they're people who are disabled and in many instances, the disability is a mental impairment. So, it's very difficult for them to know where to begin. They won't have the resources to subpoena in the doctors and they often even lack the ability to understand what earning capacity is, which is what the magistrate is claiming. In order for somebody to get SSI or Social Security Disability, it's a very rigorous process. The Social Security Administration collects all the evidence for people and when the evidence is inconclusive, they even go so far as to set up medical evaluations that the Social Security Administration pays for. Most of the people who qualify for SSI would not be able to do that on their own and what we're looking for here — the Family Support Magistrate system doesn't have such a mechanism in place. What we're trying to do with this bill is that if a person appears before a Family Support Magistrate and there's already been a determination that this person is disabled, Social Security has reviewed the evidence and made this conclusion, this bill would say to the magistrates you can't say this person has an earning capacity. You can't deviate from the Child Support Guidelines. This person has no income. This person's medical evaluation has been reviewed by the Social Security Administration and disability determination and that it is not for the courts or the magistrates to look behind that determination. Just one example (inaudible-tape switched sides-some testimony not recorded) exempt for failing to pay a $1,000 child support order that shouldn't have been entered against her because she really was retarded and had no ability to pay. She was released from jail when the family came up with the $1,000 and had been appointed a lawyer who hadn't been able to garner any evidence about her mental retardation. The magistrate said she needed to come up with a doctor's letter saying that she was retarded. Well, she wasn't seeing anybody for this condition. She had always been mentally retarded. There wasn't a doctor around who either felt qualified to make that evaluation. And ultimately the case — a Legal Services lawyer in New Britain had to haul out the old evidence from the Social Security Administration and came up with the information that Social Security had used showing that this woman was retarded and ultimately the order was reduced to zero. But the bill would sort of present that squandering of resources on trying to re-assess something when the Social Security Administration that was in the position to make that determination in the first place has already made that determination." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 2003 Sess., pp. 505-07.
III
Arrearages can, however, be assessed based on the spotty incidents of actual work during the reach-back period. The public act does not preclude the court from counting any actual income earned by the defendant. The major difficulty is that most of the defendant's work was under the table. The State and the plaintiff were unable to establish with specificity the time, duration and compensation for most of these periods of employment.
There was evidence as to the duration of employment and the rate of pay while the defendant worked for his brother Leo. Unfortunately, this period of ascertainable actual income was prior to the date of separation and accordingly is not subject to being assessed for past due child support. Paradoxically, while there is sufficient evidence of various periods of employment to impute income under an earning capacity deviation, the court is precluded by the statute from doing so. Yet the credible evidence of actual income, from which a support arrearage could be charged, pertains for the most part to periods of time outside the scope of the reach-back period.
For the period of time in which the defendant is liable for past due support, the only employment specifically established with compensation known by a fair preponderance of evidence was his short period of employment at Family Dollar. The documentation submitted by the State establishes that he worked there during calendar year 2001, was paid $6.40 per hour, and earned a total of $99.20. The portion of that income allocable to the child support arrearage depends on the time period over which this income was earned. In any event, the defendant is a "low income obligor" for purposes of calculating support for three minor children. If he earned the entire $99.20 by working full time at $6.40 per hour, the child support due for that period would be $37.82. If one presumes that he earned this money at the rate of $10.00 per week, the past due support accrued would be $10.17. In the absence of evidence from the defendant, the court will make a reasonable presumption in favor of the children.
The minimum percentage of child support for three minor children for a low-income obligor is 10.25% of net income. If the defendant worked precisely one week, the percentage of net income is 12.38% for three children, or $12.28. If the defendant worked full time but left the job after two days of work, the rate of support should be based on his pay rate. A full week of earnings at $6.40 per hour would total $256 which would presume 38.12% of net income for support of three minor children. The dollar figure for a full week would be $99.00. In this case, the court applied the percentage amount for that rate of pay times the actual total income reported. The court did not impute any deductions. There was no evidence of any actual deductions and the court has no basis to impute any deductions. Since this was the only income reported for the calendar year, it is likely that the defendant paid no income tax.
IV
"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. Torres v. Waterbury, 249 Conn. 110, 123, 733 A.2d 817 (1999)." De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 431-32, 849 A.2d 382 (2004). "It [is] the sole province of the court to determine the credibility of the witnesses and the weight to be given to the evidence. The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it." Petronella v. Venture Partners, Ltd., 60 Conn.App. 205, 212-13, 758 A.2d 869 (2000), appeal dismissed, 258 Conn. 453, 782 A.2d 97 (2001); Nashid v. Andrawis, 83 Conn.App. 115, 118, 847 A.2d 1098 (2004).
The court finds the testimony of the witness Bruce Davis to be credible. Mr. Davis testified the defendant borrowed a chainsaw from him, severely injured himself, commenced a lawsuit and received a $6,000.00 settlement.
Whether or not the injury was self-inflicted or whether inebriation was a causal factor is not relevant to the resolution of this issue.
The court takes judicial notice of an action filed in the Tolland Judicial District entitled Larry Barnaby v. Bruce Davis, docket number CV03-0081283. The action was withdrawn on July 9, 2003 presumably coincident with settlement. The record corroborates Mr. Davis's testimony that there was a lawsuit and a settlement. In the absence of any countervailing testimony or evidence the court finds that the defendant received $6,000.00 as a net settlement.
"There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties . . ." Jewett v. Jewett, 265 Conn. 669, 678 n. 7, 830 A.2d 193 (2003); Drabik v. Town of East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995).
The question next presented is whether any past due child support shall be assessed based on the settlement recovery. While the court found no case law directly on point, our Appellate Court did reverse a trial court decision to preclude a personal injury recovery from consideration in a motion to modify. The trial court's rationale was "that the personal injury award represented compensation to the defendant for his physical injuries. While that may be true, it does not mean that such an award is precluded from consideration as part of the sources of income and estate; see General Statutes § 46b-84; of the recipient of the award . . ." Fabiano v. Fabiano, 10 Conn.App. 466, 471, 523 A.2d 937 (1987).
The Fabiano court suggests that a personal injury award, in some cases, "is merely repaying the victim for actual economic impairment." To the extent that the award "may truly make the victim economically whole again and nothing more, no increase in economic circumstances results." However, the court put the burden of proof squarely on the award recipient. "To the extent that it is demonstrable, whether the defendant's award represented an economic betterment or merely compensation for an economic impairment is information which was more readily within the defendant's ken than the plaintiff's." Fabiano v. Fabiano, supra, 10 Conn.App. 472, citing Sommer v. Sommer, 108 Wis.2d 586, 591-92, 323 N.W.2d 144 (1982).
In another context, General Statutes § 17b-94 provides the State of Connecticut with a lien on a cause of action for 50% of the net proceeds of a parent liable to reimburse temporary family assistance. Additionally, when orders of support are to be paid to the state by and through the Title IV-D agency and the obligor owes past due support of $500 or more, General Statutes § 52-362d provides the State with a 100% lien on any property, real or personal, in which such person has an interest. State v. Moreland, 47 Conn.Sup. 583, 587, 817 A.2d 767, 33 Conn. L. Rptr. 626 (2003).
"This statute is separate and distinct from § 17b-93, and any § 17b-93 lien would be in addition to a lien for past due support obligations. Moreover, § 52-362d(d) and (e) were adopted as `one component of a comprehensive child support enforcement plan mandated by Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.' Jarmon v. Commissioner of Social Services, 47 Conn.Sup. 492, 497, 807 A.2d 1109 (2002). It was part of the legislature's effort to satisfy the requirement of `[t]he Child Support Enforcement Amendments of 1984 . . . to establish . . . statutory procedures for withholding from income amounts payable as support, . . . for imposing liens against real and personal property for amounts of overdue support . . . Public Law 98-378, § 466(a).' Turner v. Turner, 219 Conn. 703, 713-14 n. 8, 595 A.2d 297 (1991)." State v. Moreland, supra, 47 Conn.Sup. 587-88.
The aforementioned cases suggest that at least in some circumstances, the proceeds of a personal injury award are available as a source of child support. Moreover, in determining child support, the court is entitled to consider the estate or assets of a potential obligor. General Statutes § 46b-84(d); Regs., Conn. State Agencies § 46b-215a-3-(b)(1)(A).
General Statutes § 46b-84(d) provides, in relevant part:
"(d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child."
Section 46b-215a-3-(b) of the 1999 child support guidelines provides:
"(b) Criteria for deviation from presumptive support amounts.
(1) Other financial resources available to a parent. In some cases, a parent may have financial resources that are not included in the definition of net income, but could be used by such parent for the benefit of the child or for meeting the needs of the parent. The following resources may justify a deviation from presumptive support amounts:
(A) substantial assets, including both income-producing and non-income-producing property;"
There was no indication from the Department of Social Services investigator that the State recovered anything from lien or seizure. The defendant elected not to present himself at trial to illuminate the matter. Nor has he provided evidence that the award merely compensated him for economic impairment. Indeed, since the defendant claimed inalienable public benefits as his only income, it is reasonable to presume that the settlement money in fact increased his economic condition.
The foregoing analysis suggests that if the settlement of the personal injury action were occurring concurrently with the present matter, the court could deem the settlement proceeds to represent a substantial asset, and on that basis and in the best interest of the child, deviate from the child support guidelines and order child support. The court sees no reason why the same rationale shouldn't apply to past due support. Accordingly, the court will allocate $4,000.00 of the defendant's net settlement proceeds toward the past due support. Given that the settlement money went to the defendant at approximately the same time that the plaintiff discontinued Temporary Family Assistance, it seems equitable to split this amount between the State and the plaintiff.
V
The respondent is ordered to pay $0 current support plus $0 on the arrearage, effective August 23, 2004. The court finds arrearages to the plaintiff in the amount of $2,000.00 and to the State of Connecticut in the amount of $2,037.82 as of August 22, 2004. Immediate income withholding is ordered. Each parent is ordered to provide medical and dental insurance for the benefit of the minor children as available through employment, union or group plan. There is no additional ability of the defendant to contribute unreimbursed medical costs or day care expenses.
BY THE COURT
Harris T. Lifshitz
Family Support Magistrate