Opinion
WWMFA104010129S
02-04-2016
Jason Collin v. Melanie Collin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
ANGELO L. dos SANTOS, SR. JUDGE.
The defendant, Melanie Collin, appealed from the decision of the family support magistrate. The issues are: (1) Whether the family support magistrate erred in failing to credit social security dependency benefits paid to the plaintiff on behalf of the minor children toward the defendant's child support arrearage; and (2) whether the family support magistrate in failing to advise the defendant of the need to file a motion to modify child support after the magistrate was made aware that the defendant had filed for social security disability benefits for herself and to advise the defendant that any social security dependency benefits for the minor children would not be credited against her child support arrearage unless she filed a motion to modify her child support obligation.
FACTS
The marriage between the plaintiff, Jason Collin, and the defendant, Melanie Collin also known as Melanie Goulet, was dissolved on January 7, 2011. On February 2, 2012, the Support Enforcement Officer for the Support Enforcement Services of the state of Connecticut filed a contempt citation and an application for income withholding against the defendant for a failure to provide child support as ordered and pay her contribution toward medical expenses. On December 3, 2012 and January 29, 2015, the Support Enforcement Officer again filed a contempt citation and application for income withholding against the defendant. Thereafter, on March 20, 2015, the defendant filed a motion to open and modify the judgment.
The plaintiff was awarded primary physical custody of the two minor children. On August 4, 2011, the defendant was ordered to pay $92 per week child support effective as of May 11, 2011 and $5 per week on the arrearage. A wage withholding order was also issued to take effect as of August 10, 2011. On April 4, 2012, the plaintiff was awarded sole custody of the two children.
A hearing was held before the magistrate on April 9, 2015 on three contempt citations and a motion to open and modify. The court noted that the defendant had begun receiving regular monthly social security disability income (SSDI) in January 2015. Because of the income withholding filed by the state of Connecticut with the Social Security Administration (SSA), the SSA took the amount of the child support order owed out of the defendant's monthly benefits beginning in January 2015 and forwarded payment to the state of Connecticut. The defendant's child support arrearage as of April 7, 2015 was in the amount of $17, 555.40. Applying the defendant's SSDI payments and some other payments made by the defendant to the arrearages left a balance in the amount of $5, 393.50 as of September 9, 2015. Also, as of January 2015, the two minor children received social security dependency benefits for the time period from June 2012 through December 2014, and thereafter monthly dependency benefits.
The magistrate granted the defendant's motion for modification and terminated the current child support order based on the child support guidelines regulations effective as of April 9, 2015.
The defendant argued at the hearing that the children's dependency benefits should be credited toward her child support order up to the amount of the order and, in addition, she should be entitled to a reimbursement or refund of the child support payments she paid from her SSDI income in the amount of $13, 446.40. In her memorandum of decision filed on September 28, 2015, the magistrate denied the defendant's request to use the children's social security dependency benefits as payment for her child support order and any arrearages, and to receive a return for the amount of child support she paid from her SSDI payments. The magistrate found that there remained a child support arrearage of $5, 393.50 as well as unreimbursed medical arrearages of $1, 707.40 and ordered the defendant to pay $5 per week until the arrearages were paid in full.
DISCUSSION
The defendant appeals from the decision of the family magistrate denying her request to use the children's social security dependency benefits to pay her child support order, including the accrual of an arrearage between June 2012 and December 2014, and to receive a refund for the amount of child support paid from her own funds. General Statutes § 46b-231(n)(1) provides that " [a] person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section." Subsection (7) states that " [t]he Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
The appeal from the magistrate support division to this court is confined to the record and is not a de novo hearing. General Statutes § 46b-231(n)(6). " [F]actual findings of family support magistrates" are reviewed " under the clearly erroneous standard of review" which " provides that [a] [magistrate's] determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.
It is the family support magistrate's function to weigh the evidence and to determine credibility and [the reviewing court gives] great deference to his or her findings. In reviewing factual findings, [the court] does not examine the record to determine whether the [magistrate] could have reached a conclusion other than the one reached . . . Instead, [the court] make[s] every reasonable presumption . . . in favor of the magistrate's ruling . . . The clearly erroneous standard imposes on the [party who is appealing] a heavy burden of persuasion." (Citations omitted; internal quotation marks omitted.) Commissioner of Social Services v. Joyner, 136 Conn.App. 826, 832, 51 A.3d 1139 (2012).
The defendant is asking this court to order the plaintiff to refund her the child support payments she made as follows. $11, 746.70, $372, $420.30, $420.30, $420.30, $21.70, $21.70, $21.70, $21.70, for a total of $13, 446.40, from the children's dependency benefits as a credit against her arrearage. The defendant disputes the magistrate's decision as to her application of the law on the ground that this results in the plaintiff receiving essentially more than twice the child support that the defendant was required to pay, which would bring about an unfair outcome. The plaintiff counters that the children's dependency benefits should not be used to pay the defendant's child support order and that the court should not give the defendant a credit toward her child support order based on the children's dependency benefits.
In determining the question on appeal as to whether the children's social security dependency benefits, which are independent of the defendant's social security disability payments, should be used to pay the defendant's child support order including any arrearage that accrued between June 2012 and December 2014, the cases of Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231(1998) and Tarbox v. Tarbox, 84 Conn.App. 403, 853 A.2d 614 (2004), are instructive. In Jenkins the court addressed the issue of whether social security dependency benefits received by the minor children of the disabled noncustodial plaintiff should be included in his gross income in determining the amount of his child support obligation under the Child Support and Arrearage Guidelines (guidelines). The court looked to other jurisdictions which " noted that the benefits are analogous to 'income of the parent . . .' Therefore, social security benefits are appropriately characterized as 'earnings of the contributing parent . . .' [and] are for the purpose of replacing income lost because of the employee's inability to work upon becoming disabled . . . The benefits 'are not gratuities but are earned, and they substitute for lost earning power because of the disability.'" (Citations omitted.) Jenkins v. Jenkins, supra, 592.
The guidelines are set forth at § 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies.
" The characterization of dependency benefits as a substitute for the disabled party's lost income has been identified as the basis for allowing a credit to the noncustodial parent toward his or her child support obligation. 'The majority view . . . regards social security benefits [paid to dependent children] as earnings of the contributing parent and, for this reason, allows benefits paid to a child on the parent's behalf to be credited toward child support obligations.' . . . The same reasoning has also provided the basis for the decision to include the benefits in the gross income of the noncustodial parent. In deciding that the . . . benefits . . . should be credited as child support payments by [the noncustodial parent], [the court has] reasoned that those benefits are essentially earnings derived by [the noncustodial parent] from his past social security contributions. By parallel reasoning, the benefits should be counted as income to [him].
" Moreover, the [noncustodial parent] enjoys the benefit of the credit against his child support obligation, and the credit enables him to retain more of his other income for himself. Such a release from an obligation or discharge from indebtedness is logically characterized as income. 'The benefits . . . offset [the noncustodial parent's] incapacity to provide for his children through continued employment. [The noncustodial parent] enjoys a credit 'against his support obligation for the amount of those benefits. Thus, those benefits are, in effect, income to him and fall within the definition of his income under [the guidelines].'" (Citations omitted.) Jenkins v. Jenkins, supra, 243 Conn. 592-93.
The court in Jenkins reasoned that " both the disability income received by the plaintiff and the dependency benefits received by the children would have been available to support the children if the family had remained intact. The failure to include these benefits in the plaintiff's gross income leads to a determination of child support based upon an income figure that does not accurately reflect the income available to the family unit. Contrary to the plaintiff's assertion that the inclusion of dependency benefits in gross income when applying the guidelines would lead to an unfair and inequitable result, we conclude that it is the failure to include those benefits in gross income that would lead to an inequitable result, by failing to afford the minor children of the plaintiff's first marriage the amount of support contemplated by the guidelines. Consequently, the dependency benefits must be included in the plaintiff's gross income in order accurately to determine his child support obligation." Jenkins v. Jenkins, supra, 243 Conn. 594-95. " For all of the reasons we have discussed, [the court held] that social security dependency benefits paid to the minor children of the plaintiff's first marriage and credited against his child support obligation must be included in the plaintiff's gross income for purposes of determining the amount of his child support obligation under the guidelines" Id., 595.
In Tarbox v. Tarbox, supra, 84 Conn.App. 403, the pivotal issue was " whether a parent who ha[d] been ordered, pursuant to a judgment of dissolution, to pay child support and who subsequently [became] disabled may satisfy that obligation to the custodial parent by means of the social security dependency benefits (dependency benefits) paid directly to, rather than on behalf of, a child who ha[d] reached the age of majority." (Footnote omitted.) Id., 404-05. The court noted that this issue " is one of first impression in our appellate courts." Id., 404. In reversing the judgment of the trial court, the court concluded that " the dependency benefits paid directly to a child who has reached the age of majority, rather than to the custodial parent, do not fulfill the obligations of court-ordered child support." Id., 405.
In determining whether the noncustodial plaintiff was relieved of his obligation to pay child support because dependency benefits were paid to the parties' younger child when he reached the age of majority, the court in Tarbox focused on " the statutory scheme that governs child support determinations in Connecticut . . . [and stated that these] guidelines . . . established by the legislature pursuant to General Statutes § 46b-215a, " were to create a " child support order . . . to provide for the care and well-being of minor children, and not to equalize the available income of divorced parents . . ." (Internal quotation marks omitted.) Id., 410.
Relying on Jenkins v. Jenkins, supra, 243 Conn. 584, the court in Tarbox stated: " It is without question that under certain circumstances, a parent's child support obligation may be fulfilled in whole or in part by dependency benefits paid on behalf of a minor child Jenkins concerned the postjudgment modification of a child support obligation. Our Supreme Court held that the dependency benefits paid on behalf of the minor children and credited toward the plaintiff's child support obligation must be included in his gross income for purposes of determining the amount of child support required under the guidelines . . . The rule in Jenkins could have been applied here. If the plaintiff in this case wanted the blessing of the court to credit the dependency benefits paid to his younger child toward the child support obligation, he could have requested first a modification of his child support and submitted guideline worksheets reflecting his changed financial circumstances for the purpose of determining the amount of his child support obligation, as the plaintiff did in Jenkins . This procedure is consistent with [General Statutes] § 46b-86(a)." Tarbox v. Tarbox, supra, 84 Conn.App. 411.
As recognized in the guidelines and iterated in Jenkins, the court in Tarbox further stated, " dependency benefits may be considered when determining the amount of child support and furnish a basis for a modification of child support." Tarbox v. Tarbox, supra, 84 Conn.App. 413. The court recommended that " a noncustodial parent who has applied for social security benefits to file a motion for modification on the basis of a change of circumstances, [but stated additionally that] the filing of that motion in no way relieves the parent of his or her obligation to provide child support for the benefit of the parties' child or children until such time as there is a modification, if any, of the order." Id., 414. Its recommendation was based on the fact that " the federal government sometimes takes years to make a decision [as to whether to provide dependency benefits], and this can lead to a retroactive award of benefits. Under such circumstances the party applying for federal benefits should petition the trial court for modification of a support order based on the apparent inability to work caused by the disability and alert the court to the pending application for benefits. The trial court could defer its ruling on the petition until the federal government decides whether to award the benefits. This would give the trial court the power to modify the support order retroactively to take into account all the changes in circumstance, while at the same time providing the custodial parent with notice that such a modification is a possibility." Id., 413-14. Based on Tarbox and Jenkins, our appellate courts are in agreement that the children's dependency benefits may be included as part of the noncustodial parent's gross income in determining child support vis-a-vis the guidelines and in modifying the amount of child support.
The defendant relies on Calabrese v. Calabrese, Superior Court, judicial district of Waterbury, Docket No. FA-86-0077586 (May 3, 2002, Colella, F.S.M.) (32 Conn. L. Rptr. 135, ), a family support magistrate case, in support of her argument that social security payments for the benefit of the children should be treated as credits against her child support payments. The issue in Calabrese came before the court on the defendant's motion for modification, " requesting suspension of [his] current child support order, as the children were receiving said direct Social Security benefits." While acknowledging therein that no authority existed to apply orders retroactively prior to the date of service of the motion for modification, the court stated that a " crucial distinction must be made between an inappropriate 'retroactive' order versus an appropriate 'credit.'" In making that distinction, the court in Calabrese looked to two Superior Court cases, Froehlich v. Froehlich, Superior Court, judicial district of Danbury, Docket No. FA-287372 (June 10, 1997, Moraghan, J.) (19 Conn. L. Rptr. 552), and Lincoln v. Lincoln, Superior Court, judicial district of Tolland, Docket No. FA-91-0049077-S (April 14, 1997, Bishop, J.) (3 Conn.Ops. 518) (this court aligns itself with the reasoning of the court in Jenkins v. Jenkins, Superior Court, judicial district of Tolland, Docket No. FA-90-45884-S (January 24, 1997, Rittenband, J.) . The court in Calabrese concluded that " Social Security payments paid directly to the minor children because of [their] father's Social Security eligibility are to be treated as credits against child support payments, as the said direct Social Security benefits are in lieu of the child support payments." (Emphasis in original.) Calabrese v. Calabrese, supra, Superior Court, Docket No. FA-86-0077586. Accordingly, the court held that the defendant was entitled to a credit against his arrearage back to the commencement of the Social Security dependency benefit payments to the children. Id. As to the court's reliance on the above two cited cases, Lincoln v. Lincoln, supra, is no longer authoritative because its holding was reversed by the Supreme Court case of Jenkins; see footnote 4; and Froehlich v. Froehlich, supra, is no more persuasive than any Connecticut Superior Court case holding likewise or to the contrary.
On appeal directly to the Connecticut Supreme Court, Jenkins v. Jenkins, supra, Superior Court, Docket No. FA-90-45884-S, was reversed. See Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231 (1998).
The defendant further points out to this court that the plaintiff's reliance on Lisko v. Lisko, 158 Conn.App. 734, 740 121 A.3d 722 (2015), to bolster his argument that she is not entitled to a credit for the children's dependency benefits is distinguishable from the present case inasmuch as Lisko was decided on the basis of a provision in their agreement. In response, the plaintiff remarked that he cited Lisko merely for the statement that there is no case law " nor any authority of which [the Appellate Court was] aware [that] state[d] . . . such a credit is in fact required." Lisko v. Lisko, supra, 737-38. The plaintiff further relied on Fowler v. Fowler, 156 Conn. 569, 244 A.2d 375 (1968) in support of his contention that the court should deny any credit because the defendant never made any payments of child support until those were taken out of her SSDI benefits due to the lien and income withholding orders, and she did not pursue her motion to modify in 2012. The defendant noted for the court that Fowler was decided before the existence of our guidelines in determining child support obligations and therefore is no longer controlling law. Even though Fowler was decided before the guidelines, there still is no Connecticut appellate case law that states a noncustodial parent is entitled to reimbursement for money paid toward a child support payment or arrearage from the children's dependency benefits.
" The court's conclusion that the Social Security Administration payments to the plaintiff were not allowable as a credit against the defendant's arrearage cannot be disturbed. This conclusion relates only to the factual situation of the instant case. The trial court did not conclude as a matter of law . . . that such payments are not allowable as a credit to the defendant in the fulfilment of a court-ordered payment where the factual situation justifies such an order . . . Within the sound discretion of the trial court such payments may properly be considered in determining the extent of the obligation of a parent to support minor children, together with 'the estate of the husband, his income, age, health and earning capacity and the age, health, station and separate estate of the wife.'" (Citation omitted.) Fowler v. Fowler, supra, 156 Conn. 574.
Although divergent decisions exist on this subject not only in our trial courts, but also in cases from other jurisdictions our appellate courts have not provided authority for this court to conclude that the defendant is entitled to use the children's dependency benefits as a credit or reimbursement against her arrearage. Our appellate court cases, however, have said that the amount of children's dependency benefits should be included in the gross income of the noncustodial parent as earnings of the contributing parent for purposes of determining the amount of that parent's child support obligation under the guidelines. In addition, our courts have stated that the noncustodial parent should file a motion for modification of the child support obligation reflecting a change in financial circumstances, a procedure consistent with § 46b-86(a).
In Harabosky v. Harabosky, Superior Court, judicial district of Danbury, Docket No. FA-310762 (February 10, 1998, Axelrod, J.), the court stated: " The monthly payments of social security disability to the defendant as representative for the children are treated as a credit for the plaintiff's court ordered child support weekly obligation [and will be counted as income to the plaintiff for the purpose of determining the plaintiff's support guideline obligation]." In McKinney v. Lake, Superior Court, judicial district of New London at Norwich, Docket No. FA-00-0121074-S (July 8, 2011, Boland, J.) (52 Conn. L. Rptr. 251), the court held that based on Jenkins, " the custodial parent's receipt of current social security payments for a child are applicable to satisfy an obligor's current support orders." Id., 253. Even though the payment offsets the current support order, it does not " recapture previously paid amounts of support when a lump sum payment arrives." Id. The noncustodial parent should have filed a motion to modify his support obligations due to the receipt of the children's social security benefits. Id., 254. In Panagioutanidou v. Deligiannidis, Superior Court, judicial district of Stamford, Docket No. FA-00-0177114-S, (October 9, 2013, Schofield, J.), the court held that the defendant was entitled to a credit for the social security payments to the minor child. Therein, the court cited to,
Annot., 34 A.L.R. 5th 447, Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child (1995 & Cum.Supp.).
CONCLUSION
The magistrate's decision is affirmed.
On the form filled out by the defendant for her appeal, she raised a second issue claiming that the family support magistrate failed to advise her of the need to file a motion to modify child support after the magistrate was made aware that the defendant had filed for social security disability benefits for herself and failed to advise the defendant that any social security dependency benefits for the minor children would not be credited against her child support arrearage unless she filed a motion to modify her child support obligation. The defendant is requesting that the court provide her with an advisory opinion on how to proceed with her case. The court cannot render an advisory opinion; rather the defendant must rely on her own attorney for legal advise. See
inter alia, Jenkins and Tarbox, but nonetheless concluded that " [w]hile the proper procedure should have been a motion to modify, it is within the court's discretion to apply the credit to an existing order of support." Panagioutanidou v. Deligiannidis, supra . In Washburn v. O'Reilly, Superior Court, judicial district of Hartford, Docket No. FA-86-0315735 (February 18, 1998, Bishop, J.) (21 Conn. L. Rptr. 321), the court first determined that " [i]n keeping with Jenkins . . . the plaintiff [was] entitled to a credit for dependency benefits paid to the minor child [by the Social Security Administration]." Id., 323. The court further determined, however, that the " plaintiff [was] not entitled to reimbursement or a credit to him now or in the future, or some combination of both for the lump sum payment paid by the Social Security Administration which lump sum payment [was] the accumulation of monthly benefits paid for a specific period of time during which the plaintiff had paid his full child support." Id., 324.
Milliun v. New Milford Hospital, 310 Conn. 711, 740, 80 A.3d 887 (2013) (asking the court for an advisory opinion contravenes the court's jurisprudential rule against rendering such opinions).