Opinion
No. FA 99 0070004
July 23, 2003
DECISION
On remand from the Superior Court (Graziani, J.), the court held a hearing on the defendant's motion to modify child support (Motion #120), for the minor child Joe (born May 21, 1989). Pursuant to the dissolution judgment and the parties' separation agreement, dated December 7, 2000, which was incorporated by reference, the child support had been established at $1 a year. In the judgment the court had found a deviation from the child support guidelines "due to the parties' Chapter 13 bankruptcy, and the split custody arrangement." The parties were co-owners of an automobile repair and gas station business and testified at this hearing that the plaintiff received payments from the business. The business is no longer in operation, the Chapter 13 plan (referenced in the dissolution judgment) has failed. Prior to this hearing the Superior Court heard issues relevant to defendant's actions in closing the business. (Contempt motion dated February 12, 2003, which was denied following hearing, dated April 29, 2003. The court found "no willful violation of a court order.") There is a substantial change in circumstance, and the establishment of a child support order greater than $1 a year is required.
Pending hearing of the motion to modify, the parties stipulated to two payments of $3000 before a Superior Court Judge to provide support for two periods of seven and one half weeks, November 4, 2002 to December 23, 2002, and thereafter to February 11, 2003, paid at the rate of $400 weekly.
The plaintiff requests orders consistent with the $400 weekly. The defendant requests orders in accordance with the child support guidelines of $112 weekly
The defendant has been employed since December 2002, at Bolton Collision Repair, doing automobile repair. His gross weekly earnings are $600 and net earnings are $456. The plaintiff has no earnings at CT Page 8722-n present. The guideline amount is $112. The plaintiff has requested a deviation from the child support guidelines based upon the earning capacity of the defendant.
I
In considering a motion to modify the court follows Connecticut General Statutes 46b-86 (a) which provides in relevant part:
. . . [A]ny final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to Connecticut General Statutes Section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial.
The court agrees that in the present case, earning capacity, not actual earnings, is the critical factor. Lucy v. Lucy, 183 Conn. at 234. The "parent's earning capacity" is a deviation criteria provided in the Connecticut Child Support Guidelines (effective August 1, 1999) at Sec. 46b-215a-3 (b)(1)(B). It is well established that a court may consider a party's earning capacity rather than actual income in computing a support order. Carey v. Carey, 29 Conn. App. 436, 440 (1992); Miller v. Miller, 181 Conn. 610, 611-12 (1980); Pascal v. Pascal, 2 Conn. App. 472, 482 (1984). A party's earning capacity is established based upon evidence of earnings. Logan v. Logan, 13 Conn. App. 298, 535 A.2d 1332 (1988).
The court finds that the defendant testified credibly as to the demise of the family business, a small repair and gas station, including testimony regarding a loss of a key employee, the large debt, and the contamination problem. The court finds that the testimony of the business accountant was inconsistent and incomplete as to the failure of the business and the amounts earned by the parties and that testimony is not credible. The court finds that the plaintiff's assertions and the testimony of the accountant that the business should still be in operation are not credible.
The defendant is now employed by another automobile repair shop. However, the court finds that the defendant had worked successfully CT Page 8722-o operating his own business, prior to the problems with the business and its failure. After the close of his business the defendant has not sought a position that will generate levels of income commensurate with his previous earnings. The court agrees with the decision in Yurkiw v. Yurkiw, 2002 Ct. Sup. 12679 (Sep. 26, 2002, Dewey, J.), that "Merely failing to obtain employment does not completely diminish an individual's capacity to earn income from gainful employment." The defendant's failure to look for other employment, or choosing to work at a certain place without even investigating ways to upgrade his income does not alter his earning capacity. The court finds that the defendant has not made credible efforts to upgrade his skills so that he could earn a higher rate of pay. Neither did he testify as to any efforts to find more remunerative employment. The court takes judicial notice that the defendant reported earnings in December of 2001 of $730 gross and $589 net weekly.
In addition there is credible evidence on the record of the pay rate for a mechanic such as the defendant who has long time experience as an owner-operator of an automobile repair business. The court finds the testimony of the accountant credible that the hourly rate of automobile mechanics is between $20 and $23 hourly. The defendant agreed that some mechanics earn $24 hourly but stated that he did not have the proper skills. The defendant reported $18.25 hourly earnings at the time of the divorce. He now earns $15 hourly.
The court finds that the defendant has an earning capacity in the range of $730 to $760 gross weekly. This is consistent with his earnings at the time of the dissolution of marriage in December of 2001 and consistent with the testimony regarding rates of pay for experienced mechanics. (The average pay of an experienced mechanic ranges from $600 to $920 gross or an average of $760 gross.)
II
The court declines to deviate based upon the earning capacity of the plaintiff noting that her psychologist testified as to her medical condition resulting in an unpredictable ability to work. She is diagnosed with a post traumatic stress disorder, which condition results in flashbacks and panic attacks. During the hearing this court observed that the plaintiff presented herself at all times as a capable, intelligent, competent person. No evidence was presented as to her earning capacity and past earnings other than the family business.
To award the guideline amount would be inequitable and the court will deviate pursuant to 46b-215a-3 (b)(1)(B) based upon the earning CT Page 8722-p capacity of the defendant. Based on the defendant's earning capacity, the court deviates from the child support guidelines to $150 weekly, effective February 11, 2003, the date the parties' stipulated orders expired. If there is any arrears, the court orders a payment of $30 weekly. In the alternative any credit resulting from these orders shall not require a payment by plaintiff to the defendant and shall remain on the account to be addressed when any business or property issues are resolved. The defendant is ordered to contribute to 75% of the unreimbursed medical expenses of the minor child after the first one hundred dollars each year. All other orders remain as previously established by the court.
Sandra Sosnoff Baird Family Support Magistrate CT Page 8722-q