Opinion
No. FA88-0352048
January 5, 2003
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by the court, Thomas Sullivan, J., on March 3, 1989. There were two minor children. The judgment provided for child support in the amount of $25.00 per week for each minor child. The basic child support order has never been modified. The older child, Henri, reached majority on August 29, 1999 leaving a $25.00 per week payable order for Sara, the remaining child. There is an additional $20.00 per week payable on the arrearage.
The older child Henri was born prior to the marriage, but was found by the court to be issue of the parties and was included in the judgment as to child support, custody and visitation. Transcript, 3/3/1989, p. 3, 7.
For unknown reasons, a judgment file was not filed and approved until August 2001. Another judge signed the form because the original trial judge had previously left the bench. The judgment file is demonstrably incorrect, in that it fails to mention the child-Henri, listing only Sara as issue of the marriage. The court file does include a full transcript of the dissolution hearing before Judge Sullivan, which this court will rely on being the correct record of the judgment.
The present issues came to this court pursuant to a joint motion of the defendant and the plaintiff entitled "Motion to Vacate Wage Withholding". The plaintiff and defendant submitted a written stipulation purporting to establish the arrearage as $11,700.00 owed to the plaintiff, to modify the arrearage payment order to $75.00 per week, to establish orders requiring the defendant to maintain medical insurance for the minor child, to equally divide all unreimbursed medical costs, and finally to not only vacate the income withholding order but remove the case from the IV-D system and allow the defendant to make direct payments to the plaintiff.
The parties were provided two hearing regarding the motion and stipulation. At the first of these hearings it became apparent that there were significant discrepancies regarding the amount of the arrearage owed to the plaintiff. The support enforcement division reported an arrearage of $13,734.86 owed to the plaintiff as of March 13, 2002. Yet the court file disclosed an arrearage finding by the court, Langley, F.S.M. of $3,720.36 as of June 10, 1998. Even if the defendant had made no support payments after that date, it would be mathematically impossible for the arrearage to increase to either the stipulated amount or the support enforcement figure based on the existing child support orders The court continued the matter for an audit by support enforcement, a statement of assistance to determine how much temporary family assistance had been paid, to obtain a transcript of the hearing before Family Support Magistrate Langley, and for the State or either party to file a motion to open that judgment if they believed it to be incorrect.
On the continuance date, the audit and statement of assistance were filed by the State. The transcript was not yet available. No motion to open the 1998 judgment was filed. The court denied the motion to vacate income withholding from the bench. The matter was then continued so that the court could review the audit and obtain the missing transcript, and to again give the State and the parties an opportunity to file a motion to open the judgment.
There was a substantial further delay in obtaining the transcript. This was at least in part due to the fact that the original order for the transcript described the case as Peck v. Fernandez. Peck is the plaintiff's present married name. The court reporter was unable to locate a hearing under that name, of course, because the correct name of this case is Fernandez v. Fernandez.
The law mandates that in a IV-D case payments must be directed to the State, which is then responsible for disbursing the collected child support, and also mandates that immediate income withholding must be ordered. A discussion of these mandates may be found in Scully v. Scully, 16 S.M.D. ___, 2002 Ct. Sup. 9810-x ( Colella, F.S.M., July 31, 2002) and need not be replicated here. See also General Statutes §§ 17b-179 and 52-362 as well as 42 U.S.C. § 654, 657 and 1369k. See also Olander v. Olander, 2 S.M.D. 101 (1988); Pitts-Dawson v. Ayton, 3 S.M.D. 18, 24 (1989).
After a review of the transcripts, the court file, the audit and accompanying payment records, and the statement of assistance it appears likely that the arrearage finding in 1998 was erroneous. However, no motion to open that judgment has yet been filed. Accordingly, the court is bound to consider that finding as the law of the case.
The support enforcement officer suggested that the difference is accounted for by a support assignment of the plaintiffs arrears when she applied for and received public assistance for a brief time in late 1995 to June 1996. The officer suggested that approximately $10,500 was assigned to the State and somehow not reported to the court in 1998. If one adds that sum to the 1998 arrearage finding, the total approximates the arrearage now cited by support' enforcement. The only problem with that theory is that when the plaintiff went on public assistance, the arrearage to her was in the vicinity of $15,500. Furthermore, such an assignment would have far exceeded the total amount the State paid out, which the statement of assistance documents as $4,792.00.
The support arrearage "accruing during the time of actual public assistance is awarded to the State, with all other arrearage accruing to the support recipient. This methodology was utilized by the court in allocating arrearages in Fear v. Fear, 12 S.M.D. 64 (1998); Correa v. Rosa, 10 S.M.D. 73, 76-77 (1996); Carniero v. Brevetti, 10 S.M.D. 65 (1996) (State failed to provide evidence of the amount of AFDC paid); Alicea v. Villafane, 10 S.M.D. 40 (1996) and McCulloch v. McCulloch, 6 S.M.D. 120 (1992)." McBride v. Singleton, 13 S.M.D. 284, 286, 2000 Ct. Sup. 693 (1999).
"This is consistent with present Federal statutes and regulations. In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), P.L. 104-193 and the Balanced Budget Act of 1997, P.L. 105-33 revised the Social Security Act to provide that ultimately support arrearages pursuant to an assignment of support are to be allocated and distributed in this manner. 42 U.S.C. § 408 (a) (3); 42 U.S.C. § 457 (a) (6). See also 45 C.F.R. § 302.32 (f) (ii); 45 C.F.R. § 302.51 (a) (1). Section 17-578(b)-2 (b) of the Regulations of Connecticut State Agencies provides that on discontinuance of public assistance "current support payments shall be distributed to the custodial relative of record on the date of discontinuance, for the benefit of the children named in the child support order." Jackson v. Artis, 16 S.M.D. ___, 2002 Ct. Sup. 5223, 8 Conn.Ops. 593 (2002); Busanet v. Plantier, 13 S.M.D. 290, 295 (1999); McBride v. Singleton, supra, 13 S.M.D. 286.
The full subsection states: "Payments redirected to the state under subsection (a) of this section shall continue to be made to the state for as long as IV-D services are being provided. Upon the discontinuance of cases in which support rights have been assigned to the state in accordance with section 17-82b of the Connecticut General Statutes, current child support payments shall be distributed to the custodial relative of record on the date of discontinuance, for the benefit of the children named in the child support order." Regs., Conn. State Agencies § 17-578(b)-2 (b).
It is clear from the records that the State of Connecticut has been paid in full, and in fact overpaid. Support enforcement's audit correctly computes that the total of support payments due to the State during the 32 weeks during which the children were on public assistance totals only $1,600.00. The State actually retained $2,337.00 collected child support, thereby overpaying itself by some $737.00. Additionally, the State received $2,716.39 from attorneys representing the plaintiff from proceeds recovered for her in a third party action. In this regard, the State may recover the total family assistance amount as a civil debt, pursuant to General Statutes § 17b-93. The statement of assistance shows all cash public assistance paid to the plaintiffs family unit. It is not determinative of the arrearage. Adams v. Allen, 15 S.M.D. ___ (2001); Thibault v. Thibault, 10 S.M.D. 313 (1996).
Public assistance essentially amounts to a loan, which is fully repayable by the parents. This debt may be collected in a normal civil action for repayment of a debt. State v. Angelo, 39 Conn. App. 709, 667 A.2d 81, cert. denied 236 Conn. 901, (1995); State v. Estate of China, 42 Conn. Sup. 548, 631 A.2d 1171 (1993); State v. Wellington, 34 Conn. Sup. 628, 381 A.2d 568 (1977); Thibeault v. White, 168 Conn. 112, 358 A.2d 358 (1975); Cross v. Wilson, 35 Conn. Sup. 628, 633, 403 A.2d 1103 (1979); Marfia v. State, 20 Conn.L.Rptr. 437, 3 Conn.Ops. 1305 (1997); State v. Griffin, 35 Conn. Sup. 604, 607, 401 A.2d 62 (1978); Giammatei v. State, Superior Court, Judicial District of Hartford, doc. no. 385003 (January 28, 1997, McWeeney, J.); Chestnut v. Department of Income Maintenance, "3 CSCR 796"3 CSCR 796 (1988); Commissioner of Income Maintenance v. Bimonte, "3 CSCR 772"3 CSCR 772 (1988).
General Statutes § 17b-93 states:
"(a) If a beneficiary of aid under sections 17b-22, 17b-75 to 17b-77, inclusive, 17b-79 to 17b-103, inclusive, 17b-114, 17b-180 to 17b-183, inclusive, 17b-260 to 17b-262, inclusive, 17b-264 to 17b-285, inclusive, 17b-357 to 17b-362, inclusive, 17b-600 to 17b-604, inclusive, 17b-807 and 17b-808 has or acquires property of any kind or interest in any property, estate or claim of any kind, the state of Connecticut shall have a claim subject to subsections (b) and (c) of this section, which shall have priority over all other unsecured claims and unrecorded encumbrances, against such beneficiary for the full amount paid, subject to the provisions of section 17b-94, to him or in his behalf under sections 17b-22, 17b-75 to 17b-77, inclusive, 17b-79 to 17b-103, inclusive, 17b-114, 17b-180 to 17b-183, inclusive, 17b-260 to 17b-262, inclusive, 17b-264 to 17b-285, inclusive, 17b-357 to 17b-362, inclusive, 17b-600 to 17b-604, inclusive, 17b-807 and 17b-808; and, in addition thereto, the parents of an aid to dependent children beneficiary shall be liable to repay, subject to the provisions of section 17b-94, to the state the full amount of any such aid paid to or in behalf of either parent, his spouse, and his child or children. The state of Connecticut shall have a lien against property of any kind or interest in any property, estate or claim of any kind of the parents of an aid to dependent children beneficiary, in addition and not in substitution of its claim, for amounts owing under any order for support of any court or any family support magistrate, including any arrearage under such order, provided household goods and other personal property identified in section 52-352b and real property pursuant to section 17b-79, as long as such property is used as a home for the beneficiary, shall be exempt from such lien.
"(b) Any person who received cash benefits under the aid to families with dependent children program, when such person was under eighteen years of age, shall not be liable to repay the state for such assistance.
"(c) No claim shall be made, or lien applied, against any payment made pursuant to chapter 135, any payment made pursuant to section 47-88d or 47-287, any court-ordered retroactive rent abatement, including any made pursuant to subsection (e) of section 47a-14h, section 47a-4a, 47a-5, or 47a-57, or any security deposit refund pursuant to subsection (d) of section 47a-21 paid to a beneficiary of assistance under sections 17b-22, 17b-75 to 17b-77, inclusive, 17b-79 to 17b-103, inclusive, 17b-114, 17b-180 to 17b-183, inclusive, 17b-260 to 17b-262, inclusive, 17b-264 to 17b-285, inclusive, 17b-357 to 17b-362, inclusive, 17b-600 to 17b-604, inclusive, 17b-807 and 17b-808."
Prior to 1995, this section was codified as General Statutes § 17-83e.
In Thibault v. Thibault the court found that the State had wrongfully failed to terminate its assignment long after the family no longer required public assistance and long after the State had recouped through its assignment all monies it had paid out. The court found that the obligor father had been complying with the support order for several months in an amount that exceeded the public assistance grant. Accordingly, AFDC to the family should have been terminated and the support payments redirected to the family. The State was overpaid more than $3,000.00. The court not only reallocated the arrearages but also ordered the State to refund the overpayment to the custodial parent.
"The present arrearage can be computed by simply adding all charges under the operative support order, and subtracting all proper payments and credits." Gatter v. Gatter, 15 S.M.D. ___ 2001 Ct. Sup. 1830-av (2001); Giordano v. Giordano, 14 S.M.D. ___ (2000); Filiatrault v. Becotte, 12 S.M.D. 154, 156 (1998); Lynk v. Lynk, 11 S.M.D. 233, 242 (1997); Thibault v. Thibault, 10 S.M.D. 313, 317 (1996); Alicea v. Villafane, 10 S.M.D. 40, 42 (1996); Landon v. Landon, 8 S.M.D. 200, 202 (1994).
In the absence of a motion to open the judgment the court must base its arrearage computation on the 1998 judgment which set the arrearage at $3,720.36 to the plaintiff and zero to the State as of June 10, 1998. The Support Enforcement Division's audit shows additional charges under the order to total $6,650.00 to the date of the audit, May 1, 2002. Adding that sum to the court-found arrears yields a total of $10,370.36. Against this amount the audit indicates payments of $11,499.55 by the defendant from June 10, 1998 through May 1, 2002. Accordingly, the defendant had no arrearage to the plaintiff or the State of Connecticut as of May 1, 2002.
BY THE COURT
___________________ Harris T. Lifshitz Family Support Magistrate