Opinion
No. FA 97-0065599S
March 5, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR MODIFICATION #176
The defendant has moved for modification of the order, entered pursuant to a separation agreement incorporated into the judgment of dissolution on September 12, 2001, that he pay the plaintiff child support in the amount of $180 per week. The parties appeared for hearing on this motion on three occasions in December 2009 and January and February of 2010. For the reasons stated below, the motion is granted, with a temporary modification of child support.
The defendant's motion for modification is governed by General Statutes § 46b-86(a), which provides that "[a] final order for child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party." The statute further provides for "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." Under our law, "[t]he party seeking modification bears the burden of showing the existence of a substantial change in the circumstances." (Citation omitted; internal quotation marks omitted.) Fish v. Igoe, 83 Conn.App. 398, 406, 849 A.2d 910, cert. denied, 271 Conn. 921, 859 A.2d 577 (2004).
General Statutes § 46b-86, captioned "MODIFICATION OF ALIMONY OR SUPPORT ORDERS AND JUDGMENTS," provides, in relevant part, as follows: "(a) Unless and to the extent that the decree precludes modification, . . . any 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 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 plaintiff, who home schools the parties' two children and two children from her current marriage, has no earned income. The defendant produced evidence showing that he had been laid off from his former employment at Hoffman Automobile and for the last year has been collecting unemployment insurance, working part-time for UPS, and working during good weather for a home improvement contractor. At one point he was offered a job working almost full-time for Signature Flight Support, but that position would have required him to give up his job with UPS where he has hoped eventually to get full-time work. He has recently begun working on commission as a salesman for Gillane Tool Supply, a distributor of manufacturing tools, and hopes to make that a full-time job. When the weather improves this year, he can return to the home contractor if he is not yet earning adequate income from the Gillane and UPS jobs. His earned income last year of $6,108.76 from UPS, $20,887 from unemployment compensation, and almost $11,000 from the home improvement contractor represented an average of $727 gross and $671 net per week. In December 2009, his unemployment compensation benefits were cut from $511 to $406 per week because his work history at Hoffman was no longer being considered in determining his benefit rate. That average is also based on income he is not currently earning from the home improvement contractor. At present, his income from UPS and unemployment compensation is $436 gross and $431 net per week.
The evidence also showed that last year the defendant's mother gave cash gifts to him, or paid bills for him, in the total amount last year of approximately $11,100. In February she wrote him a check for $6,500, paid his town taxes of $3,624.52, wrote a check for $40 to a dance academy, and a fourth check to Varela Music for $88 for guitar lessons. In March she wrote a check of $88 to Varela Music for guitar lessons. At the end of December, she wrote him another check, this time for $300. In Unkelbach v. McNary, 244 Conn. 350, 367, 710 A.2d 717 (1998), the Connecticut Supreme Court addressed a somewhat analogous situation. In that case, a child support obligor's domestic partner had for many months regularly paid all the monthly mortgage payments on the obligor's home and home equity loan, all monthly loan payments on the obligor's automobile, and all periodic payments for the obligor's home electricity, cable service, natural gas service, telephone service, property taxes on the residence, groundskeeping, and groceries. Examining the child support guidelines, the court noted that
The definition of gross income set forth in the guidelines does not address explicitly contributions or gifts given by a . . . third party, to a parent whose child support obligation is being determined. Section 46b-215a-1(11) of the Regulations of Connecticut State Agencies defines gross income as `the average weekly income before deductions.' That section further identifies [21] specific elements of gross income and provides that `[g]ross income includes, but is not limited to' those items. Regs., Conn. State Agencies § 46b-215a-1(11)(A).' In addition, that regulation expressly excludes two items from the definition of gross income, namely, child support received on behalf of a child living with the parent for whom the support obligation is being determined, and federal, state and local public assistance grants. Regs., Conn. State Agencies § 46b-215a-1(11)(B). Although this definition does not specifically identify contributions or gifts received from a subsequent spouse, domestic partner, or other third party as an item expressly included in gross income, the definition does provide that the items expressly enumerated do not comprise an exhaustive list. Regs., Conn. State Agencies § 46b-215a-1(11)(A). Gifts are also not mentioned in the list of items that are expressly excluded from gross income under subsection (11)(B) of the regulation.
Unkelbach v. McNary, supra, 244 Conn. 359. The court further noted that "the defendant, rather than being required to spend a certain proportion of his weekly income on his own support needs, instead has nearly all of his income available for other purposes." Id., 365. The court thus concluded that "regularly and consistently received gifts, whether in the form of contributions to expenses or otherwise, are properly considered in determining . . . to the extent that they increase the amount of income available for support purposes." Id., 359. The child support guidelines have since been amended so that regularly recurring contributions from spouses or domestic partners are now expressly excluded from the definition of gross income and may be considered as a deviation factor from the presumptive amount only if "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." See Regulations, Connecticut State Agencies, § 46b-215a-3(b)(1)(D). But the Unkelbach principle remains applicable as to regularly recurring gifts from others. The evidence here, however, does not permit a finding of "regularly recurring" gifts from the defendant's mother, and her gifts therefore do not count in his income for purposes of determining child support.
Based on the parties' current actual incomes, the current presumptive support amount is for the defendant to pay child support in the amount of $153 per week, an amount that is greater than a 15 percent variance from the current order, and 65 percent of unreimbursed medical and qualifying child care expenses. Under the guidelines, the "recommended current support order shall equal the presumptive current support amount for the noncustodial parent unless a deviation criterion . . . applies." Regs., Connecticut State Agencies, § 46b-215a-2b(c)(7). The guidelines also provide, however, that "[t]he presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case." The presumptive percentages are inappropriate in this case for it would be inequitable here not to take into account the plaintiff's earning capacity at minimum wage for purposes of establishing the proportionate responsibility of each party for unreimbursed medical and qualifying child care expenses, and the court accordingly orders that the defendant pay child support of $153 per week and 50 percent of qualifying child care and unreimbursed medical expenses.
Under the child support guidelines, the presumptive amount is based on a party's present actual income, Section 46b-215a-2b, Regulations, Connecticut State Agencies, provides, in relevant part, as follows:
(c) Determining the amount of current support
"The procedures in this subsection shall be used, subject to subsections (d) and (e) of this section, to determine the current support component of the child support award.
(2) Determine the net weekly income of each parent
(4) Determine each parent's share of the basic child support obligation
Except as provided in subparagraph (A) of this subdivision, each parent's share of the basic child support obligation is determined by calculating each parent's share of the combined net weekly income . . .
(6) Determine the presumptive current support amount
The presumptive current support amount for each parent is equal to that parent's share of the basic child support obligation, except where there is an adjustment for social security dependency benefits in accordance with subdivision (5) of this subsection."
The guidelines provide that "the presumptive current support amount for each parent is equal to that parent's share of the basic child support obligation . . ." Regulations, Connecticut State Agencies, § 46b-215a-2b(c)(6).
Section 46b-215a-3(b), Regulations, Connecticut State Agencies, provides as follows:
CT Page 6354
(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 resources that may justify a deviation from presumptive support amounts under this subdivision are limited to the following:
(B) the parent's earning capacity; . . .
Since the evidence shows that the defendant is capable of earning more when the weather improves by resuming his work for the home improvement contractor, however, this order is only temporary. He did earn approximately $11,000, probably over approximately six months from May to November, and the defendant testified that he would be able to return to that work when the weather improves. Based on that testimony, the court finds that defendant has an earning capacity, beginning May 1, of $534 per week gross, which along with a nominal unemployment compensation for that level of earnings, would give him weekly income of $538 gross and $524 net per week. The presumptive support amount then will be for him to pay child support in the amount of $186 per week, but in view of the plaintiff's earning capacity it would be inequitable not to deviate from the presumptive amount, and the court will order the defendant, beginning May 1, 2010, to pay child support in the amount of $180 per week plus one-half of qualifying child care expenses and unreimbursed medical expenses.
Under General Statutes § 46b-86, a final order for support may be modified retroactively if a marshal served the motion seeking modification. A marshal's return appended to the original motion in the court file shows that the plaintiff was served by the marshal with this motion on December 3, 2009, and this order is retroactive to that date.
General Statutes § 46b-86(a) provides, in relevant part, that "[n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50."
Attached to this decision are copies of the pertinent child support guideline worksheets showing the presumptive support amounts and new child support orders for the two time periods.
Editor's Note: The referenced worksheets have not been reproduced herein.