Opinion
No. NNI-FA-05-4003318-S
October 29, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO VACATE WAGE WITHHOLDING (#152)
This memorandum of decision addresses the issues raised by the defendant-father's postjudgment Motion to Vacate Wage Withholding (#152), derived from his claim that he improperly became subject to wage withholding without court order. Both the defendant-father and the plaintiff-mother appeared pro se in relation to the hearing of this motion, although they were previously represented by counsel; the state of Connecticut, having an interest in this matter, was represented by a skilled and experienced Assistant Attorney General. Both the plaintiff-mother and the state oppose the defendant-father's motion; neither opponent, however, contests the court's jurisdiction over the pending motion, and neither objected to its submission. (See #153.)
The defendant-father's Motion to Vacate Wage Withholding was filed upon a JD-FM-174 form that was modified to accurately reflect the nature of his claim. (#152.)
Motion #152 was first presented to the court at short calendar on July 2, 2007; the hearing was held on July 19, 2007. Thereafter, the court received a transcript, necessary for determination of the issues raised in motion #152, of the parties' participation in the uncontested dissolution hearing that occurred on October 11, 2006. Upon consideration of the file, prior court orders, the evidence adduced at the hearing and the applicable law, the court finds the present matter in favor of the defendant-father. Accordingly, the defendant-father's Motion to Vacate Wage Withholding (#152) is hereby GRANTED. However, with the defendant-father's concurrence, the court further issues an ORDER for immediate wage withholding to secure payment of the child support at issue.
The court's analysis is based in large part upon the effect of General Statutes § 52-362. Portions of this statute were amended by PA 07-274. The parties' arguments are unaffected by those amendments, as the defendant-father's motion was filed prior to, October 1, 2007, the effective date of the amendments.
I. PROCEDURAL HISTORY
The plaintiff mother's dissolution complaint was filed on June 6, 2005. The court file reflects the relatively complex pre-trial and postjudgment litigation involving the dissolution of the parties' marriage and their issues regarding custody, visitation and support of their minor child Alexander, and their own relationship. On July 5, 2005, in accordance with the parties' agreement, the court (Taylor, J.) issued pendente lite orders requiring the defendant-father to pay the plaintiff-mother $150 weekly as support for Alexander. (#108, #109.) On March 6, 2006, the court (Shluger, J.) entered an order, also pendente lite, for the defendant-father's child support obligation to be secured by contingent wage withholding. (#127.)
"Trial courts may take notice of the file in the same case . . . or the file in another case in the same court, `whether or not between the same parties.'" C. Tait, Connecticut Evidence (3d Ed. 2001) § 2.16.5, Judicial Proceedings and Records.
The court file reflects the plaintiff-mother's May 8, 2006 application for a restraining order against the defendant husband (#134). The court (Taylor, J.) issued an ex parte restraining order on May 8, 2004 (#134). That ex parte order was dismissed by agreement of the parties (Taylor, J.) on May 22, 2004 (#135). The plaintiff-mother brought a second ex parte application for relief from abuse on March 19, 2007, in the case entitled Gonzalez v. Gonzalez, Superior Court, judicial district of New Haven at Meriden, Docket No. NNI-FA-07-4007359-S. The court (Taylor, J.) denied the request on that date. (#101, #102.)
On October 11, 2006, the court (Petroni, J.) entered a judgment of dissolution that incorporated the parties' written Dissolution Agreement (#147), as amended prior to the uncontested hearing. The judgment awarded the parties joint legal custody of Alexander, who was to "make his primary residence with the Wife." (¶ 2.a., #147.) The judgment also provided for the non-custodial defendant-father to pay child support in the reduced amount of $142 per week. (¶ 4., #147.)
As found in Part II., the defendant-father became subject to an administrative wage withholding process that was instituted on April 10, 2007. The defendant-father filed his motion to vacate (#152) on June 22, 2007. On July 2, 2007, notwithstanding their disagreement concerning the wage withholding order about which the defendant-father complains, the parents amicably stipulated to certain modifications regarding the defendant-father's visitation with Alexander. On that date, the court (Rubinow, J.) entered orders in accordance with the parents' joint request for orders to allow increased contact between father and son. (#155.)
At the July 19, 2007 evidentiary hearing of motion #152 and the opposition thereto, the court advised and informed defendant-father of the rights, exemptions and opportunities codified in § 52-362(b). See Cordone v. Cordone, 51 Conn.App. 530, 752 A.2d 1082 (1999). On that occasion, while maintaining his opposition to any implied validity of the administrative wage withholding at issue, the defendant-father conceded through evidence and argument that the interests of his minor child would best be served by entry of a valid wage withholding order. (Testimony of SG.)
II. FACTUAL FINDINGS
Both parents testified and numerous documentary exhibits were tendered at the evidentiary hearing. Utilizing the applicable legal standards in considering the totality of this evidence, the court finds the following relevant facts:
"It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court . . ." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . `[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67. "The probative force of conflicting evidence for the trier to determine . . ." (Internal quotation marks omitted; external citation omitted.) Anderson v. Whitten, 100 Conn.App. 730, 740, 918 A.2d 1056 (2007).
At the uncontested dissolution hearing on October 11, 2006, both parties were represented by counsel. (Tr. 10/11/06.) In the course of that hearing, the Dissolution Agreement reflecting the parties' requested terms for the judgment of dissolution, was presented to the court. (#147.) One edited paragraph appearing of the original Dissolution Agreement, thus submitted to and maintained in the court file, is of particular interest with regard to the present controversy. (#147.) That paragraph, ¶ 4. states as follows: " CHILD SUPPORT The Husband shall pay to the Wife the sum of $142 per week by wage garnishment [SRG] payable through the State of Connecticut as total child support . . ." (Emphasis in the original; strike out in the original.) (¶ 4., #147.) The clerk's worksheet, entitled "Dissolution of Marriage — Dissolution Sheet," recording the material aspects of the dissolution proceeding, includes the only the following reference to wage withholding: " CHILD SUPPORT: x See Agreement . . . INCOME WITHHOLDING: Immediate. Contingent." (#148.) The judgment file (JD-FM-177) includes only similar reference to wage withholding, stating: "xThe written agreement between the parties dated 10-11-06 is attached and its terms are incorporated by reference . . . Child support as follows: ____________________ Payable through the State of Connecticut . . . Immediate income withholding . . . Contingent income withholding . . ." The judgment of dissolution, incorporating the provisions of ¶ 4. from the Dissolution Agreement but presenting no further statements regarding wage withholding, thus effectively modified the defendant-father's child support obligation from the pendente lite amount of $150 per week to the postjudgment amount of $142 per week, but without reflecting entry of either an immediate or a contingent order for wage withholding. (Tr. 10/11/06, #147, #148, Judgment File.)
On April 10, 2007, as noted, the defendant-father was made subject to weekly wage withholding in the amount of $142. The wage withholding was implemented by the defendant-father's employer, ostensibly in response to action taken by the state of Connecticut pursuant to the application of General Statutes § 52-362(b) and/or § 52-362(c)(1). (Exhibit 3; Testimony of SG.) There is insufficient evidence from which the court could conclude that this administrative wage withholding was initiated as the result of an actual accrued or accumulated child support delinquency, as contemplated by § 52-362(c)(1). (Testimony of SG, CG.) Similarly, notwithstanding her opposition to motion #152, there is insufficient evidence from which the court could reasonably conclude that this administrative wage withholding was commenced at the request of the plaintiff-mother, as contemplated by General Statutes § 52-362(c)(2). Moreover, there is insufficient evidence from which the court could conclude that any person had prepared or submitted the Case Input Record JD-FM-150 form available to commence so-called "Non IV-D Income Withholding" for the use of Connecticut's Support Enforcement Services, in anticipation of administrative wage withholding. See General Statutes § 17b-179.
As effective during the relevant time periods, § 52-362(b) and (c) provided, in pertinent part: "The Superior Court . . . shall issue an order for withholding pursuant to this section against the income of an obligor to enforce a support order when the support order is entered or modified . . . The court shall order the withholding to be effective immediately or may, for cause or pursuant to an agreement by the parties, order a contingent withholding to be effective only on accrual of a delinquency in an amount greater than or equal to thirty days obligation. Any finding that there is cause not to order withholding to be effective immediately shall be based on at least (1) a written determination that, and explanation by the court . . . of why, implementing immediate income withholding would not be in the best interests of the child, and (2) proof of timely payment of previously ordered support in cases involving the modification of such support. Before the court . . . issues an order for withholding which is effective immediately against an obligor who is before the court . . . it shall inform the obligor of the minimum amount of income which is exempt from withholding under state and federal law, of such obligor's right to claim any applicable state or federal exemptions with respect thereto and of such obligor's right to offer any evidence as to why a withholding order effective immediately should not issue . . . (c)(1) If an obligor is delinquent on support payments on any prior order of support in an amount greater than or equal to thirty days' obligation, whether or not such order is subject to a contingent income withholding, such obligor shall become subject to withholding . . ."
As effective during the relevant time periods, Section 52-362(c)(2) provided, in pertinent part: "An obligor shall become subject to withholding to enforce a prior order of support upon the request of the dependent regardless of any delinquency, and whether or not such order is subject to a contingent income withholding." (Emphasis added.)
This legislation creates the Connecticut Child Support Enforcement Bureau. Section 17b-179(a) provides, in pertinent part: "The bureau shall provide for the development and implementation of all child support services, including the administration of withholding of earnings, in accordance with the provisions of Title IV-D of the Social Security Act, as amended." There is insufficient evidence from which the court could reasonably conclude that the plaintiff-mother has ever independently sought the intervention of Connecticut's Support Enforcement Bureau in this case. See, e.g., State ex rel Stebenne v. Scully, Superior Court, Family Support Magistrate Docket No. FA95057167S (Colella, FSM, Aug. 9, 2002) [32 Conn. L. Rptr. 711].
When the administrative wage withholding went into effect on April 10, 2007, the only extant court order regarding child support payments established the defendant-father's obligation to make those payments "through the State of Connecticut," but by means other than through wage garnishment. (#147.) The language providing related to wage garnishment had clearly been stricken from the Dissolution Agreement before the court entered its orders incorporating the terms of that document into the judgment. (Exhibit 1; Testimony of SG; Tr. 10/11/06, #147, #148.) The court fully credits the defendant-father's uncontroverted testimony that from July 2005 through April 13, 2007, he had met his court-ordered support obligations by submitting a personal check, each week, in the amount of $142, made payable to the State of Connecticut. Consistent with the terms of the dissolution agreement, the defendant-father sent these payments to the state's central processing unit at a designated post office box in Hartford. Each week during this period, the defendant-father's checking account was debited for the appropriate amount of child support. (Testimony of SG.) Neither the plaintiff-mother nor the state offered sufficient evidence to overcome the reasonable inference that the custodial parent received child support payments of $142 per week during the period following the judgment of October 11, 2006 through April 10, 2007. (Testimony of CG.)
At the dissolution hearing, the question of whether the defendant-father owed the state of Connecticut an arrearage for past child support was raised but not resolved; the defendant-father denied the accrual of such arrearage at that time. (Tr. 10/11/06.)
The defendant-father has expenses that make it difficult for him to pay the presently ordered child support. He has filed for bankruptcy and he borrows money from his mother both to maintain his standard of living and to allow him to meet his child support obligations. The court fully credits the consistent testimony from both the defendant-father and the plaintiff-mother that it will serve Alexander's best interests to have a valid wage withholding order put into effect under all the circumstances of this case. (Testimony of SG, CG.)
In reaching this determination, the court notes that notwithstanding these economic challenges, at the time of hearing, the defendant-father had not presented a motion for diminution of the child support order issued on October 11, 2006. (#152.)
Given the evidence and the record as a whole, the court concludes that while the state was not in attendance at the dissolution hearing on October 11, 2006, the parent-parties were then fully aware that the terms of the judgment would not serve as the basis for the imposition of wage withholding orders, either immediate or contingent. (See Tr. 10/11/06; #147; Testimony of SG, CG.) A fair and objective review of the original document, as described above, impels the determination that each parent voluntarily added his or her initials to certain amendments upon the written Dissolution Agreement that was presented to the court on October 11, 2006. (#147.) A close examination of that document discloses, in a number of locations, handwritten insertion of the initials "SRG" representing the defendant-father's entries in black ink, and "X," representing the plaintiff-mother's entries in blue ink. (Tr. 10/11/06; #147.) By adding their initials to language that amended the Dissolution Agreement document, each parent acknowledged the express excision of the language in ¶ 4 that, as originally drafted, had called for the defendant-father's payment of child support "by wage garnishment." (#147.) In addition, the transcript of the dissolution proceedings clearly and consistently establishes the plaintiff-mother's express agreement that the defendant-father would pay child support "through the State of Connecticut" but without utilization of any wage withholding order. (Tr. 10/11/06.) Concerning the content of the Dissolution Agreement, as amended, the plaintiff-mother's only stated concern, reflected in the transcript of the dissolution proceedings, relates to "the daycare issue," not directly relevant to motion to vacate. (Tr. 10/11/06.) On the day of the uncontested hearing, the defendant-father was subjected to lengthy inquiry from counsel and the court concerning his capacity to pay child support, his obligations for work-related day care, his sobriety during visits, and the parents' exchange of tax returns during Alexander's minority. However, the transcript of the dissolution proceedings reflects no oral statements by any person concerning the mechanism by which the defendant-father would pay child support to conform to the judgment; no notice or waiver of the defendant-father's rights or advisement of available exemptions applicable to the imposition of immediate wage withholding notwithstanding his presence in court; no findings as to why Alex's best interests would not be served by immediate wage withholding; and no specific proof of consistent payment, by the defendant-father, of the pendente lite child support previously ordered by the court. (Tr. 10/11/06.)
In reaching this factual determination, the court notes that while the entry in black ink was reproduced, the entry in blue ink is not apparent on the copy of the Dissolution Agreement attached to the Form JD-FM-177 (judgment file) signed by counsel for the defendant-father on November 9, 2006 and by counsel for the plaintiff mother on December 5, 2006.
On cross-examination regarding the specific amendment to the Dissolution Agreement, the plaintiff-mother was asked: "Page 4, Child Support it is $142.00 we have stricken the language by wage garnishment and your understanding is that Mr. Gonzalez is paying directly to the State of Connecticut $142.00 per week, is that your understanding?" To this inquiry, she responded "Yeah." (Tr. 10/11/06.) The plaintiff-mother similarly responded to an additional series of questions that establish her knowing and voluntary acquiescence to the absence of orders related to wage withholding for child support purposes at the time of dissolution. (Tr. 10/11/06.)
III. RESOLUTION OF THE DEFENDANT-FATHER'S CLAIMS
In support of his assertion that the court should rescind the wage withholding order instituted by the state on April 10, 2007, the defendant-father argues that this administrative action was implemented in error, as it assumed the existence of a prior wage withholding order although no such order had ever previously been issued by a court or magistrate. (Exhibit 3; see also Exhibits 1A, 2, 4.) He further argues that the dissolution judgment of October 11, 2006 lacks clear and unambiguous language supporting the execution of any such order, whether immediate or contingent, so that he has been subjected to administrative wage withholding without opportunity for hearing, presentation of proof of payment, or the written findings required by law. See § 52-362(b)(1), (2). Instead, he submits, the Dissolution Agreement expressly excluded any garnishment for payment of child support, so that this administrative wage withholding was improperly instituted against him. (#147.) Countering the defendant-father's motion, the plaintiff-mother and the state together submit that a contingent wage withholding order was automatically established through the terms of the dissolution judgment, even though the Dissolution Agreement, the judgment file and the clerk's notes are silent as to these issues. (#147, #148, Judgment File.) The court declines to adopt or accept this submission, however, as it is not supported by the totality of the evidence and circumstances present in this case.
Apparently conceding the absence of any advisement of the income exemptions and right to a hearing at which the defendant-father could contest the imposition of immediate wage withholding, neither the plaintiff-mother nor the state has argued that such an order was, in fact, issued on October 11, 2006.
The court agrees with the defendant-father's assertions, which are consistent with the evidence and the court file. The court has thus found the issues raised by motion #152 in favor of the defendant-father. However, as previously indicated, with the defendant-father's express agreement, the court herein issues orders for wage withholding to facilitate the provision of support for the minor child.
A. EFFECT OF THE JUDGMENT OF DISSOLUTION
As found in Part II., the terms of the October 11, 2006 judgment, which incorporated the terms of the amended Dissolution Agreement of even date, overtly and intentionally omitted reference to any form of wage garnishment, although both parties were represented by skilled, experienced matrimonial counsel of their choice at the dissolution hearing; the parties must thus must be found to have had adequate opportunity to request inclusion or objection to the exclusion of an order for contingent wage withholding. (Tr. 10/11/06; #147, #148, Judgment File.) The defendant-father's claim that the judgment lacks any overt order for contingent wage withholding has not been mitigated by any evidence presented through the testimony at the hearing on the motion to vacate, through language in the Dissolution Agreement (#147), the clerk's worksheet (#148), the Judgment File, or the transcript of the dissolution proceedings on October 11, 2006. Neither these documents nor the parties' testimony establishes any reasonable basis for concluding that the court had made, at the time of dissolution, a determination that such a contingent withholding order should be entered upon agreement of the parties or for "cause," as contemplated by § 52-362(b). Moreover, there is insufficient evidence from which it could reasonably be found that the court had ever made the findings minimally requisite to a determination "not to order withholding to be effective immediately" pursuant to the statute. Neither opponent to the defendant-father's motion has identified any portion of the record that reflects the requisite "written determination that, and explanation by the court . . . of why, (sic) implementing immediate income withholding would not be in the best interests of the child. "§ 52-362(b)(1). In the same manner, although the October 11, 2006 order reduced the defendant-father's weekly support obligation from $150, the pendente lite amount, to $142, the record as a whole is void of any indication that the court then received, as contemplated by § 52-362(b)(2), the "proof of timely payment of previously ordered support [required for] cases involving the modification of such support" whenever contingent wage withholding orders are imposed.
Neither the plaintiff-mother nor the state argues that an order for immediate wage withholding was imposed at the dissolution of marriage on October 11, 2006.
No party contests the court's clear approval and condonation of the parties' determination to exclude any language related to "wage garnishment" from the Dissolution Agreement that provided the structure and content of the judgment on October 11, 2006. (Tr. 10/11/06; #147, #148.) Instead, as found in Part II., the court file, the transcript of the October 2006 proceedings and the evidence presented at the motion to vacate hearing consistently establishes that both parents acknowledged the absence of any language related to wage withholding, either immediate or contingent, contemplated by the dissolution and concomitant child support orders. Rather, the file and the evidence firmly indicates that the parents, the only parties present at the time of the dissolution, knowingly and voluntarily acquiesced to the limitations of this relatively unconventional element of the judgment, which called only for the defendant-father to make child support payments "through the State of Connecticut" in some manner other than through wage garnishment. (Testimony of SG, CG; #147, #148.) Accordingly, notwithstanding the opponent's argument to the contrary, the court is constrained to conclude that the judgment of dissolution cannot fairly be construed as providing the basis for any orders involving wage withholding, whether immediate or contingent. To the contrary, the court finds that the judgment expressly excludes consideration of wage withholding in any guise.
As found in Part I., a contingent wage execution pendente lite child support order was issued on March 6, 2006 (#127). However, it is axiomatic that any impact of this order ceased operation as of the date of dissolution, as all interim orders merged into and were superceded by the child support order and methodology for payment imposed through the judgment on October 11, 2006. Smith-Lawler v. Lawler, 97 Conn.App. 376, 379, 904 A.2d 1235 (2006), citing Sweeney v. Sweeney, 271 Conn. 193, 202, 856 A.2d 997 (2004); see also Tobey v. Tobey, 165 Conn. 742, 745-46, 345 A.2d 21 (1974).
B. EFFECT OF § 52-362(b)
In the alternative, the plaintiff-mother and the state submit that even if the dissolution judgment does not establish sufficient basis for inferring that a contingent wage withholding order was issued on October 11, 2006, such order must be found to have been imposed upon the defendant-father by default. They argue that Connecticut and federal legislation pertaining to child support issues, including § 52-362(b), mandate such result "whether or not a [prior order of support] is subject to a contingent income withholding" even if the obligor is not delinquent "on support payments . . . in an amount greater than or equal to thirty days' obligation . . ."§ 52-362(c)(1). Again, the court declines to accept this aspect of the opponents' argument.
In reaching its determination, the court has acknowledged the language of § 52-362(b) in its entirety. See Summit Hydropower v. Comm'r of Environmental Protection, 226 Conn. 792, 808, 629 A.2d 367 (1993) (statutes must be read as a whole), cited for like proposition in Town of Middlebury v. Dept. of Environmental Protection, 283 Conn. 156, 164-65, 927 A.2d 793 (2007). It is the opponents' position that § 52-362(b) obligates the court to take certain action, without discretion, by way of issuing some form of a wage withholding order whenever support obligations are imposed. The opponents further claim that whenever the court fails to issue the obligatory withholding order, a contingent withholding order becomes effective even nonetheless. The plaintiff-mother and the state find support for this submission in the specific, directory language within § 52-362(b), for instance, that providing that: "The Superior Court and any family support magistrate shall issue an order for withholding pursuant to this section against the income of an obligor to enforce a support order when the support order is entered or modified . . . The court shall order the withholding to be effective immediately or may, for cause or pursuant to an agreement by the parties, order a contingent withholding to be effective only on accrual of a delinquency in an amount greater than or equal to thirty days' obligation." (Emphasis added.) Id. However, read as a whole, § 52-362(b) presents clarifying and equally compelling language establishing prerequisites to imposition of a contingent wage withholding order, which prerequisites were not met in the present case. For instance, § 52-362(b) also provides that: " Any finding that there is cause not to order withholding to be effective immediately shall be based on at least (1) a written determination that, and explanation by the court or family support magistrate of why, implementing immediate income withholding would not be in the best interests of the child, and (2) proof of timely payment of previously ordered support in cases involving the modification of such support." (Emphasis added.) § 52-362(b).
Neither opponent contests the fact that this case lacks such written determination or proof as is required by § 52-362(b). However, they argue that notwithstanding the absence of written findings or proof as required by § 52-362(b)(1) and (2), because the statute mandates the imposition of some form of wage withholding order whenever child support issues are entered or modified, the defendant-father was made subject to contingent wage withholding order was entered through tacit, but automatic, operation of the dissolution judgment. The plaintiff-mother and the state further argue that the legislative intent explicit in § 52-362(b) anticipates the automatic imposition of such a contingent wage withholding order in every case in which the court has been silent as to the issue of withholding. They argue that as the statute requires the court to impose "an order for withholding pursuant to this section against the income of an obligor," as no immediate withholding order was imposed, the dissolution court's only alternative was to "order a contingent withholding . . ." and that such order would enter automatically if the court did not specifically address the issue. However, other than by referencing the text of § 52-362(b), neither the plaintiff-mother nor the state provide no authority for their proposition that the contingent wage withholding order must have been imposed at the time of dissolution, by default, even in the absence of the written findings and receipt of proof also made mandatory by the clear terms of § 52-362(b)(1) and (2) when contingent orders are at issue.
While these arguments at first glance may seem apposite, our case law provides an alternative remedy where, upon entering child support orders, a trial court has issued neither an immediate withholding order, nor has made findings as to "why, implementing immediate wage withholding would not be in the best interests of the child" nor has acknowledged "proof of timely payment of previously ordered support," requisite to imposition of a contingent wage withholding order pursuant to § 52-362(b)(1), (2). As found in Part II., the court's orders on October 11, 2006 effectuated a slight but clearly downward modification of the defendant-father's child support obligation. Under these circumstances, the contingent wage withholding order, promoted by the plaintiff-mother and the state, does not come into effect by default. As a matter of court procedure, such a matter must ordinarily be remanded for a hearing pursuant § 52-362(b) before wage withholding properly can be instituted, pursuant to the rule enunciated in Cordone v. Cordone, supra, 51 Conn.App. 530, through which the Appellate Court resolved a similar claim.
In this case, there is no indication that either parent specifically requested the imposition of a withholding order. Rather, as found in Part II., the evidence and record supports the determination that, with the assistance of their matrimonial lawyers, the parties fully supported the court's entry of child support orders without reference to wage garnishment. (Tr. 10/11/06, #147, #148, Judgment File.) Compare Strobel v. Strobel, 73 Conn.App. 488, 491 808 A.2d 1138 (2002) ("§ 52-362(c)(2) authorizes an immediate wage execution at the request of either party").
Cordone v. Cordone involved an obligation to pay alimony rather than child support, but required the court's attention to the impact of § 46b-362(b), just as in the present case. In Cordone, as in the pending matter, the trial court had not entered either immediate or contingent orders for wage withholding to secure the support payments due to the plaintiff. On appeal, Cordone plaintiff raised legal claims akin to those submitted by the opponents to motion #152, arguing "that the trial court was required to issue an immediate wage withholding order because the court's memorandum of decision was silent as to whether cause existed for ordering a contingent wage withholding. The plaintiff argues that such silence was tantamount to the issuance of a contingent order, without a finding of cause or an agreement of the parties that a contingent order should issue, which is not allowed under the statute. The defendant counters that the trial court need not articulate good cause for issuing a contingent wage withholding order and that, regardless, such cause did in fact exist." (Footnotes omitted.) Id., 535.
This court is guided by the Appellate Court's response to the contentions raised in Cordone v. Cordone. There, the Appellate Court first acknowledged that the text of "Section 52-362(b) mandates an immediate wage withholding order; see Emerick v. Emerick, 28 Conn.App. 794, 804, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); 32 S. Proc., Pt. 12, 1989 Sess., pp. 3948-49, remarks of Senator Anthony V. Avallone (`wage orders and garnishments and support orders are automatic'); 32 H.R. Proc., Pt. 21, 1989 Sess., p. 7456, remarks of Representative Richard Tulisano (`there will be an automatic order of wage withholding' under the statute); unless the trial court exercises its discretion to issue a contingent order for cause." (Emphasis added.) Id., 536. Notwithstanding this expressed mandate, however, upon analysis of the applicable legislation, Cordone v. Cordone next expressly confirmed that any "automatic" issuance of an order for wage withholding must remain subject to the obligor's right to a hearing at which opposition to the implementation of such orders can be considered. Thus, Cordone v. Cordone construes § 52-362(b) as not imposing an immediate or contingent wage execution order "automatically" or by default, as a matter of law, in the absence of strict compliance with the global protections that the statute provides to both recipient and obligor insofar as support orders are concerned. Cordone v. Cordone emphasizes the need for close attention to each aspect of the statutory protocol, with requisite court or magistrate-based identification of the cause for issuance of a contingent rather than an immediate wage withholding order as required by § 52-362(b)(1) and (2), before involuntary withholding can lawfully be imposed. In the absence of strict compliance with the entire statutory protocol, the appropriate remedy for a court faced with a motion to vacate such as that submitted by the defendant-father (#152) is to provide the opportunity for hearing of the wage withholding issue to conform to the statute. Cordone v. Cordone, supra, 51 Conn.App. 536. As the Appellate Court found in Cordone, "[b]ecause the trial court did not, pursuant to the statute, issue either an immediate wage withholding order or a contingent one for cause, and, because the trial court did not provide the defendant his statutory rights under § 52-362(b) as to exemptions or allow him to offer any evidence as to why a withholding order effective immediately should not issue, we must remand the case. The defendant must be provided with notice as required by the statute and the court must issue either an immediate wage withholding order or, if it finds cause, a contingent wage withholding order." (Emphasis added; footnote omitted.) Id.
In reaching the determination that the rule of Cordone v. Cordone governs the present litigation, the court has remained aware that this contest involves child support rather than alimony, and that parties in her all agree that a wage withholding order will best serve Alexander's interest. Nonetheless, the lessons of Cordone v. Cordone are markedly applicable here. It is obvious that the defendant-father was in attendance at the dissolution hearing on October 11, 2006. (Tr. 10/11/06; #147.) As no immediate wage withholding order was issued, both the plaintiff mother and the defendant-father were entitled to a hearing and judicial findings as to the issue of "cause" for not issuing that immediate order, predicate to the imposition of any contingent order and pursuant to § 52-362(b)(1) and (2). In the absence of such hearing, and in the absence of findings and proof anticipated by § 52-362(b)(1) and (2), this court lacks adequate basis for identifying any withholding order issued by the dissolution court on October 11, 2006. Thus, the defendant-father is entitled to relief by way of vacating the administrative wage withholding imposed on April 10, 2007, even while he remains subject to the extant orders for payment of weekly child support in the amount of $142 "payable through the State of Connecticut." (Tr. 10/11/06, #147, #148.) Cordone v. Cordone, supra, 51 Conn.App. 536.
As a practical matter, the mandatory hearing contemplated by Cordone v. Cordone was conducted on July 19, 2007. As found in Parts I. and II., in conjunction with the hearing of motion #152, the defendant-father was then advised of his rights, informed of his opportunities to claim exemptions, and provided with a forum at which he could contest the entry of an immediate or contingent wage withholding order. On that occasion, the defendant-father maintained his vigorous opposition to maintenance of the administrative withholding order entered on April 10, 2007. However, after the advisement and waiver contemplated by § 52-362(b) and Cordone v. Cordone, supra, the defendant-father effectively agreed to the entry of a valid wage withholding order, concurring with the plaintiff-mother and the state that such an order would best serve young Alex's interests. (Testimony of SG.)
Thus, while moving to vacate the existing administrative order, the defendant-father in fact supports the immediate entry of a new order that will secure his son's child support through wage withholding as contemplated by § 52-362(b).
C. EFFECT OF § 52-362(c)(1)
In support of their claim that the administrative wage execution was properly imposed on April 10, 2007, the plaintiff-mother and the state also promote the application of § 52-362(e)(1) to the facts of this case. They would have the court conclude that the defendant-father was delinquent on support payments for a period of thirty days or more, so that he must remain subject to the administrative order whether or not contingent wage withholding was ordered as a part of the judgment of dissolution.
The court declines to accept this aspect of the opponents' argument, as well. Notwithstanding the testimony provided by the plaintiff mother in support of her position, the totality of the evidence provides insufficient basis for determining that the defendant-father had, in fact, failed to pay support "in an amount greater than or equal to thirty days' obligation" as contemplated by § 52-362(c)(1). In the absence of such evidence, the provisions of § 52-362(c)(1) do not support the imposition of an "automatic" or administrative wage withholding order, "whether or not [the prior order] is subject to a contingent income withholding (sic)." Thus, under the circumstances of the case in its present posture, the defendant-father is effectively insulated from execution of any withholding order until all the statutory requirements have been met. See Part. III. A.
IV. CONCLUSION
Here, the defendant-father has met his burden of establishing that the administrative order for wage withholding went into effect on April 10, 2007 without a court's conclusion as to due cause and thus in the absence of a prior order for contingent withholding, as contemplated by § 52-362(b). Although the administrative withholding was imposed in reliance upon a supposed contingent order, neither the text of the dissolution judgment, the transcript of the dissolution proceedings on October 11, 2006, nor the testimony adduced at the hearing of the motion to vacate (#152) supports the position promoted by the plaintiff-mother and the state, to wit, that the defendant-father had been made subject to an order for contingent wage withholding at the time of dissolution, notwithstanding the court's silence on that subject. As the provisions of § 52-362(c)(1) and/or (2) do not apply to the facts of this case, the rule of Cordone v. Cordone, supra, effectively precludes the issuance of "automatic" contingent wage withholding in support cases absent the utilization of the provisions of § 52-362(b)(1) and/or (2).
As the court finds no prior court authorization for the administrative action that was implemented on April 10, 2007, it is constrained to concur with the defendant-father's claim that he is entitled to the relief requested. See generally Cordone v. Cordone, supra, 51 Conn.App. 536. The court further concurs with the parties' agreement that the minor child's best interest will be served by a valid wage withholding order. Accordingly, as the requirements of § 52-362(b)(1) and (2) were met on July 19, 2007, the court issues such order forthwith, in the amount established at the time of dissolution, that amount not having been modified by any court. General Statutes § 46b-86(a).
General Statutes § 46b-86(a) provides, in pertinent part: "No order for periodic payment of . . . 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 an alimony or support order from the date of service of notice of such pending motion upon the opposing party . . ."
V. ORDERS
WHEREFORE, the defendant-father's Motion to Vacate #152 is hereby GRANTED.
AND WHEREFORE, the court further ORDERS:
The defendant-father's wages are now subject to an order of wage withholding in the amount of $142 per week, consistent with the unmodified child support obligations imposed through the judgment of dissolution on October 11, 2006.