Opinion
No. HHD FA 07-4028072S
April 23, 2010
MEMORANDUM OF DECISION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR MODIFICATION, POST-JUDGMENT (#114) AND AMENDED MOTION FOR MODIFICATION, POST-JUDGMENT (#118.10)
This case presents an issue of first impression in this state regarding a conflict between General Statutes § 46b-71 and the Uniform Interstate Family Support Act (UIFSA), § 46b-212 et seq., and the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C.A. § 1738B, regarding the substantive law applicable to proceedings for modification of foreign child support orders when the parents and child now live in this state. Section 46b-71 requires the court to apply Massachusetts law to the plaintiff's motion for modification of the child support order in the amended Massachusetts judgment of divorce nisi dated July 12, 2004, and registered by the defendant in this court on January 31, 2007, pursuant to that statute. UIFSA and the FFCCSOA, however, provide that the plaintiff's motion is governed by Connecticut law since the parties and child now live in this state. The parties appeared with counsel for hearing on these motions in July 2009, but the case was then continued without presentation of any evidence for the parties to consider the effect of the federal statute on these proceedings. The plaintiff's counsel was later permitted to withdraw, and since then she has been representing herself in the proceedings, which resumed with evidentiary hearings on January 6 and March 5, 2010. For the reasons stated below, the motion is denied.
General Statutes § 46b-71, captioned "Filing of foreign matrimonial judgment; enforcement in this state," provides in relevant part as follows: "(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final (b) . . . A foreign matrimonial judgment so filed . . . is subject to the same procedures for modifying . . . said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling."
General Statutes § 46b-213q, captioned "Modification of child support order of another state," provides, in subsection (f) as follows: "(1) If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, the Family Support Magistrate Division has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order. (2) The Family Support Magistrate Division exercising jurisdiction under this subsection shall apply . . . the procedural and substantive law of this state to the proceeding for enforcement or modification."
The Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B, provides, in pertinent part, as follows: "(a) General Rule — The appropriate authorities of each State —
(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and
(2) shall not seek or make a modification of such an order except in accordance with subsections (e), (f), and (I).
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(e) Authority To Modify Orders — A court of a State may modify a child support order issued by a court of another State if —
(1) the court has jurisdiction to make such a child support order pursuant to subsection (i);
and
(2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant; or . . .
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(h) Choice of Law
(1) In general — In a proceeding to establish, modify, or enforce a child support order, the forum State's law shall apply except as provided in paragraphs (2) and (3).
I CHOICE OF LAW
The judgment of the Massachusetts court awarded joint legal custody of the parties' one minor child, Grant Evans, born on May 19, 1999, granted physical custody of the child to the plaintiff wife, and ordered the defendant husband to pay (i) child support of $270 per week, (ii) half of the child's uninsured medical expenses exceeding $100 per year, and (iii) half of the child's "summer camp and extra curricular activities up to a maximum amount" of $3,000 per year. On December 19, 2006, a Massachusetts court granted the plaintiff's request to move with the child to the State of Connecticut; and both parents and the minor child now live in Connecticut.
In arguing that the court should apply Massachusetts law to her motion for modification, the plaintiff relies on § 46b-71, which provides that "the substantive law of the foreign jurisdiction shall be controlling" in any proceeding to modify a foreign divorce judgment registered in Connecticut under that statute. The defendant's position that Connecticut substantive law now applies, however, is supported by § 46b-213q(f), which provides that a family support magistrate "shall apply . . . the procedural and substantive law of this state to the proceeding for . . . modification" of foreign child support orders registered under UIFSA in this state when the parents and the child all now live in Connecticut. The difference is significant. The plaintiff claims that the defendant would owe $621 per week in child support under the Massachusetts child support guidelines, while the presumptive support amount under the Connecticut child support guidelines is for him to pay $245 per week
On its face, § 46b-213 appears to apply only to proceedings in the family support magistrate division of superior court, which has exclusive jurisdiction under General Statutes §§ 46b-212b, 46b-212w, and 46b-213g over foreign child support orders registered in Connecticut under UIFSA. Such is the position maintained by the plaintiff, who asserts that "Connecticut has two registration methods on its books." Pl.'s Supplemental Memorandum of Law Re Choice of Law and Applicable Child Support Guidelines, p. 5. She argues that both the method by which a foreign child support order is registered in this state — as part of a divorce decree pursuant to § 46b-71, as in this case, or as a separate support order pursuant to § 46b-213g — and the tribunal before which a motion for modification of that child support order is heard — in the Superior Court under § 46b-71 or in the family support magistrate division pursuant to UIFSA — determine whether a court will apply Connecticut or foreign child support law when both parents and the child now live in Connecticut.
One cannot fault the plaintiff's analysis of the text of these two statutes. She is correct that § 46b-71 creates a method for registering certain foreign domestic judgments and provides, contrary to the language of § 46b-213q(f), that foreign child support orders contained in a foreign divorce decree registered under § 46b-71 are always controlled by the substantive law of the issuing jurisdiction, without reference to where the parents and child now live. UIFSA, on the other hand, applies specifically to child support orders, and has different provisions regarding choice of law depending on where parties and child now live.
The plaintiff's brief refers to § 46b-71 as part of the Revised Uniform Reciprocal Enforcement Support Act (RURESA), which is the successor to the original Uniform Reciprocal of Support Act (RURESA). She correctly notes that "RURESA provided that the state courts could modify the original order so long as the court applied . . . the substantive law of the original state . . ." (See http://www.law.upenn.edu/bll/archives/ulc/fnact99/1920_69/ruresa68.pdf for the full text of RURESA, which provided in section 7 as follows: "Duties of support applicable under this Act are those imposed under the laws of any state where the obligor was present for the period during which support is sought"). The plaintiff mistakes the genesis of § 46b-71, however, for that statute did not originate with RURESA, which the legislature repealed when it enacted UIFSA; See Public Acts, Spec. Sess., June 1997, No. 97-1, § 74; but as part of the Enforcement of Foreign Matrimonial Judgments Act, enacted by the Connecticut general assembly in 1977 when it also adopted the Uniform Enforcement of Judgments Act (UEJA), codified in chapter 928 of General Statutes, §§ 52-604 et seq.
Having two methods for registering foreign support orders that would lead to opposite results in this case, however, runs afoul of "the well-established principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted; citations omitted.) In re William D., 284 Conn. 305, 313, 933 A.2d 1147 (2007). Moreover, following the mandate of § 46b-71 in this case, as urged by the plaintiff, would violate the specific provisions of the federal Full Faith and Credit for Child Support Orders Act, under which a state must apply its own substantive law to the modification of foreign child support orders when "the other State . . . no longer is the child's State or the residence of any individual contestant; . . ." Under the full faith and credit clause of the United States constitution; See U.S. Const., art. IV, § 1; that federal statute is binding on the states and controlling where a conflict arises between it and state law.
The constitution of the United States, article four, § 1, provides as follows: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."
This court concurs with the well-reasoned analysis of then Superior Court Judge Bishop in Peterson v. Israel, Superior Court, judicial district of Hartford-New Britain, docket no. FA 97 0716665 (July 22, 1998) ( 22 Conn. L. Rptr. 536), that the Full Faith and Credit for Child Support Orders Act (FFCCSOA) is a constitutional implementation of Congress' power under the Commerce Clause and disagrees with the contrary analysis contained in Dalley v. Wineglass, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. BS-153F/96 (February 12, 1997, Lifshitz, F.S.M.) (3 Conn. Ops. 301). As Judge Bishop wrote, the FFCCSOA was "aimed at a growing problem involving enormous sums of money and multi-state governmental activities directed at recovering unpaid support solely in interstate cases substantially affects commerce between the various states . . . Thus the Act may fairly be considered a proper exercise of Congress's power under the second category because it regulates the flow of payments on unfulfilled child support orders where the child and obligated parent reside in separate States . . . The purposes of the FFCCSOA are '(1) to facilitate the enforcement of child support orders among the States; (2) to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and (3) to avoid jurisdictional competition and conflict among the State courts in the establishment of child support orders.' Pub.L. 103-383 (October 22, 1994) § 2, 108 Stat. 4064. The legislative intent and purposes behind both 18 U.S.C. § 228 and 28 U.S.C. § 1738B were quite similar and will hopefully ameliorate past problems of enforcement of child support orders across state lines." (Quotations omitted; citations omitted.) Peterson v. Israel, supra.
This court need not adopt the drastic step of declaring § 46b-71 unconstitutional as applied to the facts of this case pursuant to the supremacy clause, however, as the conflict between that statute and § 46b-213q(f) as applied to this case is readily resolved by the "well-settled principle of [statutory] construction that specific terms covering [a] given subject matter will prevail over general language of . . . another statute which might otherwise prove controlling." (Internal quotation marks omitted.) Board of Education v. State Board of Education, 278 Conn. 326, 338, 898 A.2d 170 (2006). "When statutes relate to the same subject matter, they must be read together and specific terms covering the given subject matter will prevail over other general language of the same or another statute which might otherwise prove controlling." (Internal quotation marks omitted.) Zanoni v. Lynch, 79 Conn.App. 309, 320 n. 4, 830 A.2d 304, cert. denied, 266 Conn. 929, 837 A.2d 804 (2003). In this case, the more specific provisions of § 46b-213q(f), which apply to (i) foreign child support orders involving (ii) parents and children who now all reside in Connecticut, control over the more general provision of § 46b-71 regarding foreign domestic judgments.
This court is aware that numerous courts of this state have held that § 46b-71 governs modification of foreign child support orders. See, e.g., Vitale v. Krieger, 47 Conn.App. 146, 702 A.2d 148 (1997) (finding plain error where a trial court did not apply foreign domestic law: "The Superior Court, in deciding the motions before it, applied the substantive law of Connecticut rather than that of the foreign jurisdiction, Texas. Clearly, when modifying a foreign matrimonial judgment, the courts of this state must apply the substantive law of the foreign jurisdiction, and failure to do so constitutes plain error"); and Burton v. Burton, 189 Conn. 129, 454 A.2d 1282 (1983) (holding that the trial court properly applied New York substantive law to a motion for modification of a child support order contained in a New York divorce decree: "The defendant next assigns as error the trial court's application of the substantive law of New York. Clearly, when modifying a foreign matrimonial judgment, Connecticut courts must apply the substantive law of the foreign jurisdiction. General Statutes 46b-71(b)"). None of these cases, however, have considered the applicability of § 46b-213q(f) to child support orders where all relevant individuals now live in Connecticut or the mandate of the full faith and credit clause. The court thus concludes that Massachusetts no longer has continued, exclusive jurisdiction over the child support order and that the courts of this state may now exercise jurisdiction to modify the original Massachusetts child support order, and in doing so the proper substantive and procedural law to be applied now and thenceforth to the setting of the order for payment of current weekly child support is that of the State of Connecticut.
Under UIFSA and FFCCSOA, certain portions of the child support order continue to be governed by Massachusetts law. FFCCSOA provides, for example, that the law of the state that issued the original child support order continues to govern "the duration of current payments and other obligations of support." See 28 U.S.C. § 1738B(h)(2), quoted in footnote two above. Similarly, General Statutes § 46b-213j, captioned "Choice of Law," provides in subsection (a) that "the law of the issuing state governs . . . (3) the existence and satisfaction of other obligations under the support order" and General Statutes § 46b-213a(c) provides that "except as provided in subsection (b) of section 46b-213r, a family support magistrate may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support."
A number of commentators and cases have noted that "the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C.A. § 1738B(h)(2), requires application of the issuing state's law in determining the duration of support payments. This is so, even though the issuing state has lost continuing, exclusive jurisdiction over the support order." 18 A.L.R.6th 97, Validity, Construction, and Application of Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C.A. § 1738B, Section 19. See Comment, "Uniform Interstate Family Support Act (1996) (with more unofficial annotations by John J. Sampson)," 32 Family Law Quarterly 390, 510 (Summer 1998) ("[B]ecause modification of the child support order when all parties reside in the forum is essentially an intrastate matter, Subsection (b) [of UIFSA § 613, codified in this state as 46b-213q(e)(2] withdraws authority to apply most of the substantive and procedural provisions of UIFSA, i.e., those found in the Act other than in Articles 1, 2, and 6. Note, however, that the provision in Section 611(c) forbidding modification of nonmodifiable aspects of the controlling order applies. For example, the duration of the support obligation remains fixed despite the subsequent residence of all parties in a new state, perhaps with a different duration of child support"); Laura W. Morgan, "Recurring Issues in UIFSA," 20 American Journal of Family Law, Number 1, Spring 2006 ("[T]he responding state, if modifying the child support order, cannot modify when the order terminates"); Janet E. Atkinson Laura W. Morgan, "The Uniform Interstate Family Support Act: 1999 Comprehensive Update," 11 Divorce Litig. 173, 192 (1999), cited in Morgan, Recurring Issues in UIFSA, supra ("Under UIFSA, nonmodifiable terms are set for the life of the order. Thus, a court with jurisdiction to modify an existing child support order cannot change the fixed terms of the controlling order, such as the duration of the child support obligation. The policy behind this provision is to prevent parties from seeking modification in a state that terminates child support at an earlier date"). Accord, Sharp v. Sharp, 765 A.2d 271 (N.J.Super.App. Div. 2001); Holbrook v. Cummings, 750 A.2d 724 (Md.Ct.App. 2000); Welcher v. Rager, 491 S.E.2d 661 (N.C.Ct.App. 1997); Cooney v. Cooney, 946 P.2d 305 (Or.Ct.App. 1997).
Hence, the child support order here continues to be governed by Massachusetts substantive law as to the duration of a child support order. That is particularly significant in this case because the Massachusetts child support guidelines allow orders for parties to share in the cost of post-secondary education. See Massachusetts Child Support Guidelines II. F., which provide in relevant part as follows: "In establishing support orders for children over age 18, to the extent permitted by law, the Court shall exercise its discretion considering the reason for the continued residence with and dependence on the Recipient, the child's academic circumstances, living situation, the available resources of the parents, the costs of postsecondary education for the child and the allocation of those costs between the parents, and the availability of financial aid."
Such a result avoids the absurd and arbitrary result of different child support orders for the same parents and child depending on which tribunal in this state heard a modification and avoids any unconstitutional infirmity in application of § 46b-71 to parties and children living here. "[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same." United States v. Lovett, 328 U.S. 303, 329, 66 S.Ct. 1073, Page 65 90 L.Ed. 1252 (1946) (Frankfurter, J., concurring); Blodgett v. Holden, 275 U.S. 142, 144, 48 S.Ct. 105, 72 L.Ed. 206 (1927); see Verrastro v. Sivertsen, 188 Conn. 213, 220-21, 448 A.2d 1344 (1982). So holding also effectuates the specific intent of our legislature embodied in § 46b-213q(f) to apply Connecticut substantive law to child support orders when parents and child now all live in Connecticut. As the defendant pointed out, the Connecticut child support guidelines are adjusted for this state's specific characteristics and based on factual and policy decisions delegated by the Connecticut general assembly to the Connecticut child support guidelines Commission as to "the appropriateness of child support awards" for "an adequate level of support for children of this state." See General Statutes § 46b-215a and Child Support and Arrearage Guidelines (2005), preamble, § (c), p. ii.
General Statutes Section 46b-215a, captioned "Commission for Child Support Guidelines. Duties. Members" provides in relevant part that "The Commission for Child Support Guidelines is established . . . to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than October 1, 1993, and every four years thereafter."
The preamble to the child support guidelines provide that among the "primary purposes of the child support and arrearage guidelines are: (1) To provide uniform procedures for establishing an adequate level of support for children, and for repayment of child support arrearages, subject to the ability of parents to pay. (2) To make awards more equitable by ensuring the consistent treatment of persons in similar circumstances . . ." Child Support and Arrearage Guidelines (2005), preamble, § (c).
II THE CHILD SUPPORT ORDER IN THIS CASE
Under General Statutes § 46b-86(a), child support orders may be modified "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." 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).
The plaintiff mother works full-time at Sovereign Bank as a mortgage developer and her compensation is based solely on commission. She has remarried, has one additional child, and is expecting a third shortly. Her average weekly income is $1,192 gross and $1,025 net after taxes. The defendant father is a senior vice-president for a business known as "Transitions Capital," where his annual salary is $157,845. In 2009 he also received a $15,000 bonus, but he satisfactorily established that he will probably not receive one this year. He also has potential income from interests in six limited liability companies that he acquired in past and present employment. Although he had no income from these entities in 2008, the evidence showed that he received distributions from them exceeding $100,000 in 2007. There was no documentary evidence as to 2009 income from them. He spends $123 on medical insurance. His weekly income is $3,042 gross and, after an imputed support obligation of $322 per week, allowed to him under the child support guidelines for his child born to his current wife since he is defending against a requested child support modification, $1,718 net. Based on these income levels, the presumptive support amount under the Connecticut child support guidelines is for the defendant to pay child support of $245 per week, which is less than the current child support order. The plaintiff has thus not sustained her burden of proof of showing a substantial change of circumstances, and her motion for modification is DENIED.
Although the plaintiff's financial affidavit claims that she has gross weekly income of $1,047 per week, she testified that she based this figure on plaintiff's exhibit 6, an end-of-year pay stub showing 2009 income for her of $54,485.73. That figure included short-term disability income of $3,241.23 for her maternity leave that ended February 24, 2009. The income after her return to work is more likely to represent her actual earning capacity, and the court annualizes her commission income to find she has annual income, while working full-time, of $61,494.30, which equals $1,191.75 per week.
The child support guidelines worksheets submitted by the plaintiff show deductions of $66 per week for health insurance, a figure she testified represents the cost incurred by her husband for placing Grant and her on his health insurance. Although the child support guidelines permit a deduction from gross income for "medical, hospital, dental or health insurance premium payments, including Husky Plan contributions, for the parent and his or her legal dependents," the evidence shows that there is no additional cost to her husband for covering the plaintiff and the parties' child. Her husband covers himself, his child from a previous marriage, and the parties' new child on his health insurance, and it costs him nothing additional to include the Plaintiff and Grant also. Even were that $66 deducted from her weekly gross income, however, the defendant's presumptive support amount under the Connecticut child support guidelines would be less than the current order.
Under the child support guidelines, "a parent defending against a proposed modification of an existing child support award" may claim a deduction from gross income for an amount determined by the guidelines for support of a dependent biological child living in that parent's household for at least the preceding six months. As the preamble to the child support guidelines explains: "The commission continues unchanged from the 1999 guidelines the deduction from gross income in the amount of an imputed support obligation for a qualified child. A qualified child is defined as one other than the subject of the support determination, who resides with the parent, is dependent on the parent for support, and for whom the parent has not claimed a deduction for court-ordered support payments. A parent may claim the deduction in the context of an initial support determination or when defending against a proposed modification. A parent cannot claim the deduction when seeking a modification of an existing child support award." Child Support and Arrearage Guidelines (2005), preamble, § (h) [captioned "Income determination"] (2) [captioned "Allowable deductions"] (G) [captioned "Imputed obligation for qualified child."] Under these rules, the plaintiff, who is seeking a child support modification, does not qualify for such a deduction for her child from her new marriage, but the defendant, because he is defending against such a modification, does.
Editor's Note: The referenced guidelines have not been reproduced herein.
Were the defendant seeking a modification, he would not be entitled to claim a deduction from gross income for an imputed support obligation for his new child; but the plaintiff, in defending against a modification, would be entitled to such a deduction for her first-born child in her current marriage in the amount of $159; and the presumptive amount would be for the defendant to pay $283 per week in current child support.