Opinion
TTDFA124016873S
11-14-2018
Jonathan SGRO v. Gwen SCHNEIDER-SGRO
UNPUBLISHED OPINION
Macierowski, J.
I
PROCEDURAL HISTORY
The plaintiff father filed this Motion for Modification on September 24, 2018, seeking to modify child support on the basis of a substantial change in circumstances, specifically his loss of employment and reduction in income. He also seeks to modify the current court order regarding the payment of visitation-related travel expenses for the parties’ two minor children. The matter was referred to Family Services for negotiations. The parties were unable to reach an agreement, and the matter was heard by the court on October 31, 2018.
By way of background, the parties were divorced by agreement on November 8, 2012. (Entry No. 115.) The Separation Agreement provided for joint legal custody of the two minor children, primary residence with the defendant mother, and a shared parenting plan. The plaintiff paid child support to the defendant in the amount of $225 a week, consistent with Child Support Guidelines, which accounted for the parties’ income at that time and the shared parenting plan.
In 2013, the defendant moved to modify the parenting plan to allow her and the children to relocate to California where she had sought and obtained employment. By order dated August 27, 2013, the court, Abery-Wetstone, J., denied the defendant’s request finding that her relocation to California was not for a legitimate purpose and not in the best interests of the children. (Entry No. 334.) Thereafter, the defendant relocated to California without the children.
Pursuant to the court’s order, following the defendant’s relocation to California, the children’s primary residence has been with plaintiff in Connecticut. A post-relocation parental access plan provides the defendant with access to the children, either in Connecticut or California, during school breaks and on three-day weekends. The children spend Thanksgiving and Christmas with the defendant in California. The defendant also has substantial access time over summer vacation.
Also pursuant to the court’s order, child support from the plaintiff to the defendant terminated upon her relocation to California. Nevertheless, the plaintiff was to be responsible for visitation-related transportation costs for the children "since Father has access to frequent flyer miles accumulated through his work travel." As a result of the parenting and access plan, the children travel to California approximately six times a year. The plaintiff has been providing for their airline travel utilizing frequent flyer miles when possible. The defendant travels to Connecticut approximately six times a year as well and pays for her own travel expenses.
The plaintiff now seeks a modified order of child support based upon the loss of his longtime employment and corresponding reduction in income. The plaintiff’s loss of employment also results in his loss of access to the frequent flyer miles cited by the court in its August 2013 order; therefore, the plaintiff also seeks relief from the order that he pay the children’s airline travel expenses for their visits with the defendant in California.
II
FINDINGS AND CONCLUSIONS
A Substantial Change in Circumstances
Connecticut law allows a court to modify a child support order "upon a showing of a substantial change in the circumstances of either party ..." General Statutes § 46b-86(a). The threshold question is "whether there has been a substantial change in the financial circumstances of one or both of the parties." Bolat v. Bolat, 182 Conn.App. 468, 476, 190 A.3d 96 (2018). The burden is on the moving party to establish such substantial change in circumstances. Id.
The plaintiff worked as a game developer for the same company for approximately fourteen years. He testified that his income in 2017 was $143,000. The plaintiff lost his job on September 21, 2018, and is now receiving unemployment compensation with a net weekly income of $560. According to the plaintiff’s 2013 financial affidavit, which he submitted to the court for the hearing on the defendant’s relocation request, the plaintiff’s net weekly income at that time was $1,615. Thus, his current net weekly income is approximately one-third of his income at the time of the last court order that addressed child support. Just as an increase in income may warrant a child support modification, so may a substantial decrease in income. See McKeon v. Lennon, 321 Conn. 323, 335, 138 A.3d 242 (2016) (substantial increase in income, on its own, may justify granting a motion to modify child support); Heymach v. Heymach, Superior Court, judicial district of Litchfield, Docket No. FA-13-4012940-S (July 3, 2017, Moore, J.) (one parent’s involuntary loss of employment and resulting reduction in income was a substantial change in circumstance justifying modification of child support); Jacques v. Jacques, Superior Court, judicial district of Hartford, Docket No. FA-06-4023440-S (June 9, 2009, Dyer, J.) (plaintiff’s involuntary loss of employment since dissolution agreement was substantial change in financial circumstance warranting child support modification).
Accordingly, the court finds that the plaintiff’s loss of employment and reduction in income since the last court order is a substantial change in circumstances warranting a modification of child support. The court finds that the plaintiff has met his burden of proof on this issue and that, under the circumstances, it would be inappropriate and inequitable to maintain the current order calling for no exchange of child support.
B
Presumptive Child Support According to Guidelines
State law requires the use of the Child Support Guidelines to determine child support payments. There is a rebuttable presumption that the amount determined by the guidelines is appropriate and should be used by the court in issuing child support orders. In order to overcome this presumption, the court must make a specific finding that the guideline amount would be inequitable or inappropriate based on the facts of the case and specific deviation criteria. See General Statutes § 46b-215b; McHugh v. McHugh, 27 Conn.App. 727, 728, 609 A.2d 250 (1992).
Both parties submitted financial affidavits and met with or spoke to Family Relations.
Defendant participated in the proceedings by phone from California.
The defendant is employed as a teacher in Santa Clara, California with net income of $1,452.44 a week (gross income of $108,510 per year). Based on the parties’ current net income as stated in their financial affidavits, and according to the Child Support Guideline Worksheet submitted to the court, the presumptive child support amount from the defendant to the plaintiff is $359 per week.
1
Deviation Criteria
At the hearing, the defendant asked the court to deviate downward from the presumptive child support amount that she owes the plaintiff according to the Child Support Guidelines based on (1) plaintiff’s earning capacity, (2) plaintiff’s substantial assets, (3) recurring gifts plaintiff receives from his significant other, and (4) significant visitation expenses.
a
Earning Capacity
The plaintiff has applied for jobs at several gaming companies, which he identified at the hearing. He testified that he hopes to begin a part-time teaching job in the spring. Nevertheless, he has no specific job offer at this time. The defendant argued that the plaintiff would have better job prospects in California and was not aggressively searching for appropriate employment such that the court should impute a higher earning capacity to him and/or deviate from the Child Support Guidelines based on his earning capacity. The plaintiff argued that the children, now nine and thirteen years old, have happy and established lives in Connecticut and that he believes it is in their best interests to stay here. The court agrees.
There was no evidence that the plaintiff voluntarily left his job or has willfully reduced his income in order to avoid his financial obligations to the defendant or the children. The plaintiff’s efforts to obtain employment in Connecticut appear to be earnest and reasonably diligent. No evidence, other than the plaintiff’s previous income at a job he had held for fourteen years, was submitted to establish the plaintiff’s earning capacity in the current job market based on his skills and experience. At this time, the court will not impute a higher earning capacity or deviate downward from the defendant’s presumptive child support amount on this basis. See Thurston v. Thurston, Superior Court, judicial district of Hartford, Docket No. FA03-0733139-S (May 16, 2013, Olear, J.) (where defendant did not voluntarily leave his job and was actively seeking new employment, court would order presumptive child support amount based on his actual unemployment compensation and not impute a higher earning capacity to him); Jacques v. Jacques, supra, Superior Court, Docket No. FA-06-4023440-S (where plaintiff’s loss of employment was involuntary and there was insufficient evidence of current earning capacity or other income, court relied on current unemployment income as reported on financial affidavit to modify child support).
The plaintiff was paying child support until the defendant relocated to California. Thereafter, his financial responsibility has been to provide for the children’s day-to-day needs when they reside with him throughout the year and pay for their travel to California to visit the defendant. The plaintiff also was responsible for alimony payments to the defendant through December 1, 2016. The defendant has never filed a contempt motion, and there is no evidence in the record that the plaintiff has failed to meet his financial obligations in the past.
b
Substantial Assets
The defendant also argues for a downward deviation in child support based on the plaintiff’s substantial assets. While the plaintiff has more assets than the defendant, including approximately $27,000 in his checking and savings accounts and a larger 401(k) retirement account, the court finds that his assets are not so substantial as to warrant a downward deviation in the defendant’s presumptive child support.
The plaintiff testified that, since losing his job, he has been withdrawing funds from his bank accounts to pay for ordinary expenses. The defendant also pointed to an inherited IRA and paper money collection as substantial assets warranting a deviation. Nevertheless, the plaintiff testified that the IRA was depleted by 2015, in part to pay for the children’s travel expenses. He also testified that his half interest in his late father’s money collection is valued at $32,000, but he is reluctant to sell the collection in order to pay for daily expenses or travel for the children given its sentimental value. The court finds that this is not a substantial asset warranting a downward deviation.
Both parties have retirement accounts. The defendant has approximately $194,000 in various retirement assets including her teacher pension. The plaintiff has $293,000 in a 401(k). While there may be circumstances where a 401(k) could be considered a substantial asset warranting a deviation in child support, such as an upward deviation when the child support award based on the parties’ income alone is facially insufficient to meet the needs of the children, the court declines to make such a finding here to justify a downward deviation in the defendant’s presumptive child support.
The Child Support Guidelines allow the court to consider a parent’s substantial assets in deviating from the presumptive support amount if the assets "could be used by such parent for the benefit of the child or for meeting the needs of the parent." Regs., Conn. State Agencies § 46b-215a-5c(b)(1)(A). There may be substantial penalties associated with withdrawing funds from a 401(k) account. Such funds are not readily available to meet day-to-day needs. Generally, an intact family with two parents earning over $100,000 would respond to one party losing employment by cutting expenses and at least temporarily making ends meet with their remaining joint income. This is exactly what the Child Support Guidelines are intended to do: to rebalance the parties’ financial obligation to their children based on their current actual net incomes. Withdrawing from a 401(k) would be considered a last resort.
Here, the defendant seeks to reduce her child support obligation based on the plaintiff’s 401(k), in effect suggesting that such funds should be used to support the day to day needs of the children before her own income. In this case, the court will not reduce the defendant’s child support obligation simply because the plaintiff has more money in a 401(k) than she.
The court notes that in the Separation Agreement, the defendant received a portion of the plaintiff’s 401(k) via QDRO. She also waived any interest in his remaining 401(k) assets as well as his inherited IRA. (Entry No. 115.) To now use the plaintiff’s 401(k) assets to reduce defendant’s child support obligation risks effectively modifying this aspect of the parties’ property settlement agreement and penalizing plaintiff for saving. It also risks opening up the parties’ spending priorities to subjective evaluation by the court. At the hearing, both parties questioned certain spending by the other. The defendant suggested that the plaintiff was spending too much on restaurant meals in light of his job status and current income. The plaintiff questioned the defendant’s personal travel expenditures. She traveled to Europe this past year, and when asked how many times she had traveled there in the past six years, she stated that she could not recall. She also testified that the joint credit card debt on her financial affidavit is from a trip she took with her sister and that she is hoping to travel to Peru next year. The Child Support Guidelines base child support on the current income of the parties, net of certain mandatory deductions. In this way, it avoids a subjective review of the parties’ spending priorities, so long as they are meeting their child support obligations. If one party prioritizes saving, the court is reluctant to penalize that party, as well as the children, by reducing a child support obligor’s payments, absent some greater justification.
c
Recurring Gifts
The defendant argues that certain financial contributions made by the plaintiff’s significant other, who lives with him, should be considered recurring gifts that warrant a downward deviation in her child support obligation. While the plaintiff’s girlfriend pays for certain household expenses, the court does not find these payments to be the kind of recurring gifts that would warrant a downward deviation in child support. The plaintiff testified that his girlfriend pays her half of the cell phone, auto insurance, AAA and cable bills. Recurring gifts warrant a deviation "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-5c(b)(1)(D). Here, there has been no evidence that the plaintiff purposely reduced his income in reliance on his girlfriend’s "gifts" or that his own expenses have decreased to an "extraordinary" degree as a result of her contribution to certain shared household expenses. See Myers v. Myers, Superior Court, judicial district of Hartford, Docket No. FA-05-4006698-S (February 10, 2009, Frazzini, J.) (sharing of household expenses, on its own, was not a basis for deviating from presumptive child support award). Thus, the court declines to deviate from the defendant’s presumptive child support obligation on the basis of the contributions which the plaintiff receives from his girlfriend for certain household expenses.
Defendant testified that she also resides with a significant other who contributes to household expenses. Her primary concern was that she did not believe plaintiff accurately adjusted the expenses reported in his financial affidavit to reflect his girlfriend’s contributions. Plaintiff testified that her contributions are limited to her share of certain joint expenses. In any event, child support is calculated on the basis of gross income, net of certain mandatory deductions such as taxes. Whether either party’s significant other contributes to household expenses does not directly impact the child support calculation. The focus is on what the children are entitled to rely upon for support given the parties’ respective incomes.
d
Significant Visitation Expenses
Due to the defendant’s relocation to California, there are significant travel-related expenses incurred by both parties in order for the defendant to spend time with the children in accordance with the current parenting access plan. The plaintiff testified that his frequent flyer miles have not been sufficient to cover the regular travel of both boys to California. He estimates that he has spent approximately $25,000 since the defendant’s relocation for the boys’ travel. The defendant also submitted estimates of travel expenses showing that each ticket to California for her and the boys generally costs $400-$500, more during peak holiday travel.
While one could argue that this is a natural result of the defendant’s unilateral decision to relocate to California after the court found that such relocation was not for a legitimate purpose nor in the best interests of the children, it is nevertheless a reality that all parties now face in order for the defendant to maintain consistent access with the children, which the court finds is in their best interests. In light of the defendant’s extraordinary and significant visitation-related expenses, the court finds that application of the presumptive child support amount of $359 per week based upon the Child Support Guidelines would be inappropriate and inequitable. The court also finds that these expenses are "necessary ... to maintain a satisfactory parental relationship with the [children] ... and exist on a substantial and continuing basis ..." such that they qualify as grounds for deviation pursuant to the Child Support Guidelines. See Regs., Conn. State Agencies § 46b-215a-5c(b)(3)(A); Schlett v. Schlett, Superior Court, judicial district of New Haven at Meriden, Docket No. FA-05-4004354-S (February 6, 2007, Rubinow, J.) (where father relocated to Texas, court deviated downward from the presumptive child support amount based on significant visitation-related travel expenses). The court will, therefore, deviate from said presumptive amount on this basis.
The court finds the downward deviation in the presumptive child support amount, as set forth in its order, is fair and equitable under the circumstances in light of the defendant’s significant visitation expenses and in the best interests of the children. It will facilitate the defendant’s continued visitation with the children by recognizing her significant visitation expenses, while also providing support for the children’s needs while the plaintiff seeks employment and reestablishes his income.
WHEREFORE, having heard the parties, reviewed the file, and considered the evidence, statutory criteria and best interests of the children, the court orders as follows:
1. Commencing the week beginning November 25, 2018, the defendant shall pay child support to the plaintiff in the amount of $234 per week by contingent wage withholding;
2. Said child support payments shall be retroactive to October 15, 2018, the initial hearing date on the plaintiff’s Motion for Modification. This results in a six-week arrearage totaling $1,404;
3. The defendant shall pay an additional $46 per week until the arrearage is paid in full;
4. This child support order is subject to modification upon the plaintiff’s reemployment or other substantial change of circumstance as provided by law;
5. The plaintiff shall notify the defendant within ten days of obtaining employment;
6. Going forward, the defendant shall be responsible for the children’s airfare for travel to California for visitation;
7. Absent agreement of the parties, the children shall not be required to travel to California more than six times a year, as has been the custom.
At the October 15, 2018 hearing, the defendant requested a one-month continuance to retain counsel. The court noted that the defendant had been served the motion to modify in hand on September 24, 2018 and that the issues presented in the motion were somewhat time sensitive, given the plaintiff’s unemployed status and the impending holiday travel for children’s visitation with the defendant. A two-week continuance was granted. General Statutes § 46b-86(a) gives the court discretion to apply a child support modification retroactively for "any period during which there is a pending motion for modification." Balancing the interests in this case, the court finds that applying the modification retroactively to the first hearing date is fair and equitable.
The parties shall cooperate with each other and mutually agree upon flight schedules for the children, based on the children’s school, extracurricular and other commitments as well as their own schedules. If the parties cannot agree, they shall work with a parent coordinator to resolve such matters.
Judge Abery-Wetstone’s 2013 decision regarding the defendant’s motion to relocate noted the parties’ difficulty communicating effectively with one another, and that this difficulty increased following the defendant’s announcement of her intent to relocate. This court cannot help but notice that their communication seems to have only worsened over the years. The physical distance as well as the logistical and financial strain of arranging visitation from opposite sides of the country appears to have exacerbated the parties’ communication problems. The plaintiff’s loss of his longtime employment has understandably added a new stressor to the situation. The defendant also testified that she is pregnant and may need to go on disability later in the pregnancy, although she is presently working full time and has a tenured teaching position. This may add further stress and make cross country travel for visitation even more difficult. The court hopes that the defendant and the plaintiff can stay focused on their children’s need for supportive and consistent parental contact regardless of their own personal, financial or other life changes.
SO ORDERED.