Opinion
No. FA99-0154483S
October 28, 2010
MEMORANDUM OF DECISION RE APPEAL (PLEADING #238)
The parties had an uncontested divorce on December 20, 2000, after more than a year of contentious litigation. A separation agreement was incorporated into the final decree. As to child support, the agreement provided that the defendant, who was awarded all IRS dependency exemptions, should pay $340.00 per week for the support of the three minor children. It further provided that the agreement was subject to modification in the event of the plaintiff's employment or any other reasonable grounds.
The support enforcement officer, acting on behalf of the plaintiff, filed a motion for modification (pleading # 229) alleging, as the sole basis for entitlement to a modification, that the order substantially deviated from the child support guidelines, exceeding the presumptive guidelines amount by more than 15 percent. A contested hearing was conducted before the magistrate on April 9, 2009. Neither party submitted a child support guidelines worksheet but one was prepared manually by the support enforcement officer on duty that day and which was accepted by the magistrate. Those guidelines indicated a presumptive current support amount of $286.00 per week. Under that worksheet, the $340.00 per week order exceeded the guidelines amount by $54.00 per week, a deviation of more than 15 percent. Following an appeal, the Superior Court remanded the matter back to the family support magistrate for an articulation. This articulation, from which the defendant appeals, was rendered April 1, 2010. The defendant's request for rehearing was denied June 21, 2010, on the same day this appeal was filed. Thus, the court finds that the appeal is timely. See General Statutes § 46b-231(n)(2).
Under General Statutes § 46b-86(a), "any final order for the periodic payment of permanent alimony or support . . . may . . . be continued, set aside, altered or modified by the 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 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 percent from the child support guidelines is not substantial and any deviation of fifteen percent or more from the guidelines is substantial." Therefore, under the facts as found by the magistrate, the defendant would be entitled to a deviation given that the $54.00 per week disparity between the order and the presumptive amount is more than 15 percent of the presumptive amount. However, the support enforcement officer made an error in the child support calculation because she did not award all of the exemptions to the defendant as per paragraph 4.1 of the separation agreement. This court had a family relations counselor recalculate the guidelines, using the tax formula in effect on April 9, 2009, the exact income figures submitted to the magistrate by the support enforcement officer, and then awarding all three exemptions to the defendant. This recalculation produced a presumptive amount of $306.00 per week. The magistrate's finding of $286.00 per week as the presumptive amount was therefore clearly erroneous.
Paragraph 4.1 of the separation agreement provides in relevant part: "Child support shall be three hundred forty ($340.00) dollars per week payable by the Husband to the Wife with a voluntary wage execution. This amount is based on the Husband having the federal dependency exemption and credit for all three of the minor children."
The income figures used by the support enforcement officer on the worksheet were different from the figures used by the parties on their financial affidavits but the difference was inconsequential as it relates to the presumptive amount.
See Child Support Guidelines Worksheet prepared by the family relations counselor attached.
It is unfortunate that the parties were unrepresented by counsel, did not submit their own guidelines, and relied on the manual calculations of the support enforcement officer whose job it was to assist the parties and the magistrate as best she could. Court officers do not act as counsel — they merely provide assistance. She relied on the figures submitted by the parties themselves even though those numbers were different than the numbers shown on their respective financial affidavits. The magistrate, without objection, erroneously made findings based on those numbers.
Practice Book § 25-26(e) requires that a party moving for a modification "state the specific factual and legal basis for the claimed modification . . ." The court is limited to the allegations of the motion in determining entitlement to a modification. See Monette v. Monette, 102 Conn.App. 1, 10 n. 15, 924 A.2d 894 (2007). The motion relied only on the allegation of a 15 percent disparity between the order and the presumptive amount as a ground for entitlement to a modification. There were no facts alleged that might have established a substantial change in circumstances to rebut the presumption that such disparity was not substantial. Therefore, as the disparity was less than 15 percent, the court finds that the defendant was not entitled to a modification under General Statutes § 46b-86(a).
Because the defendant lacked entitlement to a modification, a remand to the magistrate for further proceedings is unnecessary, regardless of error. Where the evidence in the record supports one conclusion as a matter of law, a reviewing court need not remand the matter back to the trial court. Cf. Slootskin v. Commission on Human Rights Opportunities, 72 Conn.App. 452, 466 n. 12, 806 A.2d 87, cert. denied, 262 Conn. 910, 810 A.2d 275 (2002). Thus, the court will affirm the decision of the magistrate on that basis.
Nevertheless, the court feels compelled to discuss the merits of the defendant's appeal anyway. The defendant places great weight on the fact that the magistrate found that a deviation from the guidelines was warranted because of the criterion found in § 46b-215a-3(b)(6)(B) of the Regulations of Connecticut State Agencies, which provides that the magistrate may deviate from the presumptive amount if there is "an extraordinary disparity between the parents' net incomes . . ." While that is true, the regulation is not applicable in this case in light of the decision of our Supreme Court in Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010), which was released in May 2010, one month after the magistrate's decision. Maturo tells us that the extraordinary disparity of income applies only when it is the custodial parent who has the higher income and not, as in this case, when the non-custodial parent has the higher income. Id., 101; see also Regs., Conn. State Agencies § 46b-215a-3(b)(6)(B). Clearly, the magistrate was interpreting the statute incorrectly as claimed by the defendant.
However, the defendant ignores the other rationale used by the magistrate in denying the motion for modification. The magistrate found that the deviation was in the best interests of the children. See Regs., Conn. State Agencies § 46b-215a-3(b)(6)(c). The magistrate further found that the defendant's testimony was not credible, especially as it related to his income; that the presumptive amount was insufficient to meet the needs of the three growing children in this case; that the plaintiff had incurred added costs to satisfy the needs of the children; that the defendant's assets had grown while the plaintiff's debts had increased; that defendant refused to pay unreimbursed medical expenses for braces and eye glasses; and that the defendant's expenses for food and clothing was excessive in light of the amounts the plaintiff spent for herself and the three children. As a result, he found that it would be inequitable or inappropriate to grant the motion for modification.
This court is a reviewing court pursuant to statute — it cannot re-try facts which were found by the magistrate. Neither party offered any additional facts. While this court has already affirmed the magistrate's decision; the additional grounds cited above strengthen that decision.
It is apparent to this court that almost two years have passed since the defendant filed his motion for modification dated February 13, 2009. Much has changed. For example, the plaintiff is now employed and the defendant's income has increased. The defendant has returned from his deployment to Iraq to assist in raising the children. Under the circumstances, it is time to reevaluate the child support order entered almost ten years ago in light of current circumstances.
Exercising its equitable power for the protection of children, all parties are ordered to appear in this court, not the magistrate court, for a hearing on the issue of child support on Monday, December 6, at 2:00 P.M. Financial affidavits, including copies of their most recent pay stubs, are to be exchanged one week before the scheduled date. Each side is to present completed child support guidelines worksheets at the scheduled hearing as well as proposed orders on child support, tax exemptions, medical insurance, unreimbursed medical expenses and any other issue related to child support. As with all short calendar motions, the parties are to first report to the Family Services Unit in order to discuss settlement. A prior discussion with the guardian ad litem would also be appropriate in light of the fact that the support of his wards will be determined. The court reminds the parties that the child support guidelines have a purpose that is well defined in the law and will be respected by this court. Any deviation must meet the statutory criteria and be proved by the party requesting it.
In the event common sense prevails, and the parties are able to come to an agreement, they may present the written document on the appointed day or contact case flow to schedule a more convenient time. An agreement, of course, would save the parties the amount of time needed to process the matter, the continued aggravation of court appearances, the risk of a decision unsatisfactory to both, and the financial cost for the guardian ad litem and other counsel.
CT Page 21398