Opinion
No. FA 040488571S
April 2, 2008
The plaintiff's motion for contempt claims that the defendant is in arrears in his alimony obligation between the judgment of dissolution on July 20, 2004, and the order temporarily suspending alimony and support on July 7, 2005. Her motion #116 asks to reinstate the child support order. The defendant's motions for modification argue that (i) the original child support order did not comport with the child support guidelines and (ii) a subsequent change in circumstances warrants modification of the original orders. The parties appeared with counsel for hearing on the pending motions on March 13, 2007, and several days thereafter. The matter was continued several times to obtain transcripts of earlier proceedings and then for an unsuccessful attempt to find a record or transcript elucidating a colloquy set forth in the margin between the plaintiff and court suggesting that the original support orders may have been changed. At a recent status conference the court informed the parties that no order could be located with regard to that colloquy and that the court was now ready to render its decision, which is set forth here. For the reasons indicated below, the plaintiff's motion for contempt #118 is granted; her motion to reinstate child support #116 is granted; the temporary suspension of alimony and child support is vacated; the defendant's motion to modify #110 is denied; and his motion to modify #115 is granted.
Both motion seek a change in the alimony and support orders. Defendant's motion #115 also seeks a change in the visitation. His request to modify the parenting orders was referred to family services for an evaluation on March 13, 2007, and is not addressed here.
Resolution of this matter has been complicated by the effort of the court and parties to understand the following colloquy between the plaintiff and the court, Munro, J., on November 18, 2004:
THE COURT: . . . What's going on, ma'am? Tell me whether he's doing what he's supposed to be doing.
MS. MCCLAIN: I don't know if you made a judgment for him to pay me only $100.
THE COURT: Yes, I did.
(Transcript, 11/18/04, at 1-2.) This transcript reference made it appear as though Judge Munro at some earlier point might have decreased defendant's support obligation from $304 per week to $100 per week. The court has been unable to find any such order, however, despite combing through the file and court records. The court thus assumes that this reference to $100 was either a mistake or an allusion to the alimony order.
*Editor's Note: The referenced child support guidelines have not reproduced herein.
On July 20, 2004, the court, Abery-Wetstone, entered judgment dissolving the parties' 16-year marriage. The plaintiff testified at the dissolution hearing that day, but the husband, though having appeared, was not present. The court ordered the defendant to pay alimony of $100 per week for 15 years and child support for the parties' three minor children of $204 per week. The court evidently adopted the plaintiff's testimony that her husband earned $500 per week net, for the child support order corresponded to the presumptive support amount listed on a child support guidelines worksheet* filed at the dissolution hearing showing that amount as his income and plaintiff's income as the $300 per week net that she listed on the financial affidavit she filed that day.
On September 14, 2004, the plaintiff came to the courthouse seeking to file a post-judgment motion for contempt, as shown by document number 107 in the court file, which is the form by the clerk's office whenever a party obtains an order to show cause for a post-judgment contempt citation. Although the plaintiff apparently never actually filed that contempt motion — for the court file does not contain such a motion, only the form prepared by the clerk's office, both parties nonetheless appeared in court on October 21. The plaintiff testified that she had received no alimony or support from the defendant since the judgment while the defendant testified that he had receipts for some payments he had made to the plaintiff. The court, Munro, J., continued the case for a week and appointed counsel for the defendant on the contempt motion. The next week, the defendant gave the plaintiff a money order for $1,000, and the court ordered that "the contempt motion and the motion to modify that is being filed shall be heard on 11/18/04." (Order #109.) No motion for contempt having been filed by November 18, the court, Munro, J., that day told the plaintiff that "if you think he's not paying in accordance with the court order, you have to file a motion for contempt" and then her claims could be heard. Transcript, 11/18/04, at 2-3. The defendant had filed a motion for modification of alimony and support on November 5, 2004, but, in his absence on November 18 that motion was not heard.
On July 7, 2005, the court scheduled the case for a status conference. The defendant appeared with his attorney that day but the plaintiff did not. Defendant's counsel complained to the court that the plaintiff had been "ordered to turn over her financial information to me . . . [but] she has failed to turnover . . . her records to me." Transcript, 7/7/05, at 3. The defendant testified that in February 2005 he had been severely injured in a motor vehicle accident, had been hospitalized for several weeks, had undergone several surgeries, and had not yet been cleared by the doctor to return to work. The court, Harleston, J., entered an order temporarily suspending alimony and child support. That order has remained in effect.
In October 2005, both parties filed new motions, defendant's motion #115 for modification of alimony and child support on October 11, 2005, and plaintiff's motion #116 to reinstate child support on October 20, 2005. On May 9, 2006, plaintiff moved for contempt for nonpayment of alimony between the date of the dissolution and the suspension of alimony (motion #118). Since then the plaintiff has also brought an application for contempt in the magistrate division for nonpayment of support (#117), but the magistrate has deferred consideration of that application pending this court's resolution of the matters pending here (and the court's resolution of the pending matters should resolve that motion as well). The plaintiff's claims for relief filed on the first day of hearing in the present matters sought a finding regarding the arrearage owed on both child support and alimony, and in closing argument her attorney asked for a lump sum payment toward the arrearage.
From the evidence offered, the court finds that, since the judgment of dissolution, the defendant has made only sporadic payments of alimony and child support totaling, as of March 3, 2007, the sum of $3,225. (Although the plaintiff disputes some of these payments, the court finds the defendant's testimony on this issue more credible.) The defendant was severely injured in February 2005 when he was crushed between two motor vehicles, and is no longer able to perform the carpentry and plumbing work he used to do. Although he had not yet been cleared by his doctor to return to work as of March 2007 and still needed at least one more surgery, the court finds credible the defendant's own testimony that, as of that date, he could earn the income he had previously earned, albeit in different types of work, at the rate of $403.85 gross per week. Since the accident he has been providing daily child care for the three children he has had with Tanisha Carrington McClain, who lives with the defendant and has been supporting both him and their children through earnings from her work. There is no credible evidence that the defendant is actually employed or has had any substantial employment or earned income since his February 2005 injuries. There is also no evidence as to when the defendant became able to begin earning up to the earning capacity found above; and, in the absence of such evidence, the court finds that the earning capacity should be found as of the first day of the hearing before this court and going forward.
To distinguish between this person and the plaintiff, the court will refer to this witness as Ms. Carrington McClain.
The plaintiff argues that Ms. Carrington McClain's income should be attributed to him, presumably, for purposes of alimony, under the principles enunciated in Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 ((1998) (holding that "regularly and consistently received gifts, whether in the form of contributions to expenses or otherwise, are properly considered in determining alimony awards to the extent that they increase the amount of income available for support purposes," id., 360-61), and, for purposes of child support, based on the deviation criterion listed in § 46b-215a-3(b)(1)(D) of the child support guidelines. Here, however, the court does not find it equitable to adopt the plaintiff's position.
The Child Support Guidelines include, among the "other financial resources available to a parent" that may be a criterion for deviating from the presumptive support, "the regularly recurring contributions or gifts of a spouse or domestic partner, but only if it is found that the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts." Regs., Conn. State Agencies, § 46b-215a-3(b)(1)(D).
At the time of the hearing in March 2007, the defendant and Ms. Carrington McClain had three children and she was expecting a fourth. The defendant is not entitled to have his support obligation to these three (or four) children considered on his motion to modify child support, however, because the child support guidelines allow a deduction from his gross income for his imputed support obligation to those children only when "an initial child support award is being established" or if he is "defending against a proposed modification," neither of which is applicable here. Ms. Carrington McClain spends her earnings not just on the defendant, however, but on their children, and hence her income is not all available to him. The court thus concludes that it would not be equitable to consider her income as his or to be available to meet his support obligations for purposes of child support or alimony. Instead, the court finds it more equitable here to consider his own earning capacity, which the court finds as set forth above, as the basis for determining the pending motions. His net income, on gross weekly earnings of $404 per week, would be, as shown on the attached child support guidelines worksheet, $342.
The claim in defendant's motion to modify child support #110 that the original support order "is not in accordance with the child support guidelines" could be construed as a reference to the fact that the original support order did not take into consideration the defendant's imputed support obligation to his children with Ms. Carrington McClain. He has also asserted that he did not earn as much as plaintiff claimed during the dissolution hearing. The time to have raised those claims, however, was during the original dissolution hearing, which defendant, though having appeared, elected not to attend. Any other challenges to the original child support order needed to be raised by way of appeal or a motion to open. Accordingly, motion #110 is denied.
Tanisha Carrington McClain testified that the defendant, by caring for their children while she is at work, saves her approximately $1,000 per week in child care expenses. (At the time of the hearing, she was earning approximately $700 per week net in a full-time job; before her pregnancy neared term, she had also held a second job earning an additional $575 net per week. She was not sure whether she would return to the second job when her maternity leave ended.) Although the plaintiff argued that the defendant's earning capacity should be regarded as the amount of money that his caring for the children saves Ms. Carrington McClain in child care expense, those savings are not the same thing as his earning capacity. There was no evidence that he could earn more than found here. Moreover, the Connecticut Child Support Guidelines are "based on the Income Shares Model," which "presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together." Preamble to Child Support and Arrearage Guidelines (hereafter referred to as "Preamble") (c) Basic Principles. The Guidelines thus look, principally, to each parent's income or earning capacity for setting support obligations. The court finds that the fairest basis for setting the defendant's child support obligation here is to base it on his income or earning capacity.
The plaintiff's actual income is hard to determine because the court did not find her testimony on her finances to be very credible. For example, on two mortgage applications in 2005 for the real property awarded to her in the judgment of dissolution, she claimed more income than she was actually receiving and, on the second application, she claimed more unearned income than had even been awarded by the court. She also did not answer credibly other questions about her finances. Yet, despite these uncertainties about the plaintiff's actual income, there was no evidence that it exceeds the amount of $568.86 gross per week listed on the financial affidavit she filed with the court on the first day of the hearing on these motions. The court thus finds that her weekly income is $568.86 gross and, as shown on the attached child support guidelines worksheet, $579 net.
On the first mortgage application dated April 28, 2005, she listed monthly earned income of $2,348.69 per month and "other" income, which she testified was the alimony and support awards from the defendant that he was paying only sporadically, of $1,216 per month, for total monthly income of $3,564.69. On the second refinance application dated June 14, 2005, she listed monthly earned income of $2,338 and "other" income of $1,900, for total monthly income of $4,238. According to the sworn refinance applications, then, her monthly income increased, between the dates of the two applications, by approximately $670 per month by virtue of additional "other" income. At the hearing before this court, on the other hand, she attributed the increase in income to raises she received at work.
The defendant's motion for modification #115 asks the court to modify his alimony and child support obligations based on his medical condition. The court finds that his injuries and their effect on his ability to work at his former jobs have caused a substantial change in circumstances. The court also finds, based on the income of plaintiff and defendant's income and earning capacity, that the original child support order no longer comports with the child support guidelines by more than 15%. The presumptive support amount, based on defendant's lack of any present income, would be an order for no child support; but that would be inequitable because of his earning capacity. The court thus orders child support in the amount of $127 per week, effective March 3, 2007. This amount is the child support guidelines amount for three children, based on plaintiff's income found above and if the defendant's income matched his earning capacity. (A child support guidelines worksheet is attached based on those numbers.) Since the parties' oldest child, Micha'ela, turned 18 in April 2007 and was attending college by August 2007, the court infers and finds that, no later than August 7, 2007, the defendant owed child support for only two of the parties' children, and, effective that date, his child support obligation is $112 per week. (A second child support guidelines worksheet, based on plaintiff's income found above and if the defendant's income matched his earning capacity, is also attached.) After considering the factors for awards of alimony, the court modifies alimony to $50 per week, for the term originally set forth in the judgment of dissolution. The defendant is ordered to pay 19 per cent of qualifying child care and unreimbursed medical and dental expenses until August 7, 2007 and 21 per cent thereafter.
The court vacates the suspension of child support and alimony effective that date.
This figure is based on three children, including the parties' oldest child, Micha'ela, who turned 18 on April 17, 2007. Under General Statutes § 46b-84(b), the parties remain responsible for her support until age 19 so long as she remained a full-time high school student and continued to reside with a parent. By August 7, 2007, she was attending college (for which the parties may have financial liability under the post-secondary educational support statute, General Statutes § 46b-56c, a matter not presently before the court). She had presumably graduated from high school between her eighteenth birthday and August 7th Since there was no evidence here as to the date of her high school graduation, which would have ended her eligibility to continue as a beneficiary of a child support order, the reduction in child support based on that fact is effective as of August 7. The court does not decide here any arrearages for support between March 3, 2007, and the date of this decision.
The plaintiff's motion for contempt #118 alleges nonpayment of alimony and support between the dissolution and the suspension of those orders a year later. The evidence establishes that he has an arrearage in unpaid alimony and child support through July 7, 2005, in the amount of $12,061.88. (Since there is no way to allocate these payments between alimony and child support, and hence no way to allocate portions of the arrearage to either obligation, the court has deducted the amounts paid from the total alimony and child support obligation owed between July 20, 2004, and July 7, 2005.)
The plaintiff has argued that alimony and child support should be deemed to have continued to accrue during the time they were suspended, but she has shown no case law authority for this proposition. It is true that the word "suspend" can mean both "to cause to stop temporarily" or "to set aside or make temporarily inoperative" as well as "to defer to a later time on specified conditions." Judge Harleston suspended defendant's obligations, however, based on evidence that he had become temporarily disabled. At the status conference on July 7, 2005, the defendant's attorney told the court, Harleston, J., that "My client was recently involved in a motor vehicle accident . . . I've been advised that he has been ordered out of work by his doctor. What I'm asking the Court to do today if — if it is possible is to temporarily suspend . . ." Transcript, 7/7/05 at 3-4. The court later inquired "I guess, you don't want him to continue getting an arrearage?" When defendant's attorney replied, "That's correct, Your Honor," ( id., 6) the court called the defendant as a witness to testify about his injuries and their effect on his ability to work. Under these circumstances, it is clear that the suspension of alimony was intended to mean that additional arrearages would not accrue while the defendant was unable to work.
From http://www.merriam-webster.com/dictionary/suspended.
The defendant has shown no lawful excuse, however, why he did not pay the court-ordered amounts through the date that alimony and child support were temporarily suspended, and the motion for contempt is granted. The court finds credible the defendant's last financial affidavit, filed March 13, 2007, showing no financial resources that would enable him to pay off this arrearage immediately or in substantial lump sums. He is thus ordered to pay the arrearage at the rate of $25 per week for child support and $50 per week for alimony, for a total of $75 per week toward the arrearage.
In May 2005, during the period when the defendant was not paying his full alimony and support obligation but before plaintiff had filed her contempt motion, he quitclaimed real property worth $70,000 to Ms. Carrington McClain. A month later she obtained a mortgage on the property in which she obtained proceeds of $70,000. Some of that money was used to pay tax liens on the property, and some was used to pay off a child support obligation the defendant owed to another woman. But Ms. Carrington McClain used between $15,000 to $20,000 to pay off her own debts, including her student loans. The real property was an asset that could have been used to satisfy his arrearage to the plaintiff here. There was no evidence offered, however, that any of these proceeds are still available or that the property was transferred to evade his support obligations here.
The court will award counsel fees for the time spent by plaintiff's counsel on the motion for contempt. The court reserves jurisdiction to enter such an order upon her filing of a supplemental counsel fee affidavit and time records for time expended on this motion since her original time sheet filed March 13, 2007. The court also reserves jurisdiction to decide any claims of additional arrearage for the period between March 3, 2007, and the date of this decision. Any claims regarding counsel fees or arrearages shall be filed within 20 days of the date of this decision. Any objection or request for a hearing regarding her supplemental fee affidavit or time records must be filed within two weeks after their being filed.
Section 46b-87 of the General Statutes provides as follows: "When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person."