Opinion
No. FA 00 0121074 S
July 8, 2011
MEMORANDUM OF DECISION ON APPEAL FROM FAMILY SUPPORT MAGISTRATE.
Before the court is defendant's appeal (#189), filed March 2, 2011, from a February 18, 2011, order of the Family Support Magistrate (Lifshitz, FSM). The issue before the court is whether defendant is entitled to any credit against child support orders for a lump-sum, retroactive payment to plaintiff by the Social Security Administration.
I. AUTHORITY OF THIS COURT TO ACT UPON APPEAL
CONN. GEN. STAT. § 46b-231(n)(1) provides that a person who is aggrieved by a final decision of a family support magistrate (FSM) may obtain judicial review by way of appeal. Any such appeal must be filed not later than fourteen days following the decision appealed from.
Subsection (5) permits a party to apply for leave to introduce additional evidence, but no such application was made. Accordingly, as directed by the statutes' subsection (6), the court decides this appeal on the strengths of the parties' arguments on June 7, and its review of the entire record, including a transcript of the hearing in question and the exhibits admitted below.
Subsection (7) of the statute provides that the court may reverse or modify the decision of the magistrate if substantial rights of the appellant have been prejudiced because the decision of the 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.
II. PROCEEDINGS ON THE JUDICIAL AND MAGISTRATE'S DOCKETS CT Page 14917
The parties to this action are the parents of one minor child who is now ten years old.
Over the years, they have engaged in much litigation over their respective responsibilities for supporting this child. Understanding the present controversy requires looking back to September 20, 2007, when the magistrate (Adams, FSM) entered a child support order having three components — current support of $91 weekly; a daycare order of $69 weekly; and an arrearage payment of $18 weekly — thus totaling $178 per week. It is apparent from the memorandum of decision that appellant then considered himself to be disabled. He was receiving disability payments from an insurance policy, and had an application pending with the Social Security Administration for a determination of long-term disability and consequent entitlement to federal benefits.
On January 31, 2008, he filed a motion to open and modify those orders (#154), alleging changes in the circumstances of both parties. On February 13, 2009, he filed a second and almost identical motion (#168). These two motions were claimed and reclaimed at least fifteen times, until finally, on June 30, 2010, FSM Adams heard the later motion on the merits and denied it, commenting "[s]o on either ground — burden of proof or assuming four months of illness and unemployment — the Court would deny the motion to modify . . . the parties can file new motions to raise the issues that are currently relevant."(tr., June 30, 2010, p. 10). On July 13, 2010, appellant accepted that invitation and filed a third motion to open and modify (#173), substantially similar in content and effect to the 2008 and 2009 motions. On September 14, 2010, he reclaimed this motion but that is the last item in the file related to it, and it appears to have never been adjudicated.
Meanwhile, however, on September 16, 2010, he filed a fourth motion to open and modify (#179), and later, on January 14, 2011, yet a fifth motion to open and modify (#184). These two motions came before the magistrate on February 18, 2011, and raise the issue the magistrate decided on that date, and from which this appeal is taken. These two later motions are quite similar, and allege that upon a date not mentioned the Social Security Administration had approved his application. As a result, it had sent a substantial check to each party amounting to the retroactive benefits that had accrued while the application was pending. By virtue of a contractual provision, the insurance carrier which had been paying appellant the funds from which his child support was derived intercepted his social security check, whereas there was no equivalent recapture from the child's mother. Accordingly, appellant claims, she received a windfall consisting of both the court-ordered' support and the social security benefits, which in his opinion entitles him to a future credit equal to the child support he paid in the applicable period.
Two further details are significant here. First, these two most recent motions make an additional claim for relief, that is, for an order that appellant be allowed to claim the child as a dependent for federal tax purposes; this claim is independent of the windfall issue. The dependency deduction issue did come before the magistrate on February 18, but he quickly stated that he lacked jurisdiction to render the relief appellant sought. That decision is not the subject of this appeal, leaving appellant free to continue to pursue it in another forum as the law allows.
Secondly, the court (Jongbloed, J.) had held a hearing on December 20, 2010, on the appellant's motion to compel discovery responses (#179) which he claimed were necessary to allow him to prove the allegations of his modification motions which include his demand for a credit. In the course of that hearing, and by agreement of counsel for the parties, the court terminated the support orders dating back to September 20, 2007, in consideration of the appellee's receipt of the social security payments. This court has the benefit of the transcripts of both the December 20 and the February 18 hearings, whereas it is not clear that the magistrate, on February 18, had access to the earlier transcript. In an effort to ascertain what issues were before him, the magistrate noted the court's memorandum of the December 20 order terminating current support and opined that that order seemed to resolve the major issue raised by the motions before him. Moments later, and after a hearty discussion, he concluded that the matter of support was res judicata, having been determined by Judge Jongbloed.
That ruling is one of the two major arguments appellant raises on appeal. What Judge Jongbloed did, precisely, was to zero out the current support and to deny the discovery request; she commented that `There may, in the future, be a litigation regarding the credit . . . that's going to have to be left for another day." (tr., December 20, 2010, p. 9). Thus it is clear that Judge Jongbloed had not determined the credit issue. The magistrate's observation that she had was a mistake. It is a harmless error, however, as there exist other dispositive reasons for sustaining his decision.
The record reveals that at the time of the February hearing, appellant was in Florida and attended via a telephonic connection. His counsel was present in court. A lengthy colloquy with counsel ensued, during which the December 20 order was one issue, but the discussion also included appellant's counsel's attempts to persuade the magistrate that in addition to termination of current support he was entitled to a credit for the amount of the lump sum award. Counsel cited several cases as authority for his demand, principally Jenkins v. Jenkins, 243 Conn. 584 (Conn. 1998), but also Tarbox v. Tarbox, 84 Conn.App. 403 (2004), and "Watrous," apparently a reference to Watrous v. Watrous, 108 Conn.App. 813 (2008). Since the Watrous case has nothing to do with the issues involved in this appeal, the court will assume that counsel either meant to say (or did say, and thus the monitor misheard him) that he was relying upon Washburn v. O'Reilly, 21 Conn. L. Rptr. 321 (1998), which he cites in his brief on appeal.
None of these cases provide support for his claims. Jenkins settled the question whether the custodial parent's receipt of current social security payments for a child are applicable to satisfy an obligor's current support orders. Although it employs the term "credit," its context makes clear that the word is used to denote how the payment offsets the order; it says nothing about recapture of previously paid amounts of support when a lump-sum payment arrives. The case did not involve a retroactive modification of a prior order, nor treatment of lump-sum issues.
Both Tarbox and Washburn did involve those issues, and their holdings are directly contradictory to appellant's arguments. The Tarbox case involved a lump-sum payment made to the parties' child after she reached age 18; since she was still in high school, the state support order remained in effect. The obligor failed to make the post-majority support payments, claiming an offset equal to the amount his daughter had received. He did this retroactively, when charged with contempt. The court rejected his efforts both on the merits, and on the basis that Conn. Gen. Stat. § 46b-86(a) forbids retroactive modification of a child support order to a date preceding the filing of the motion seeking modification. On this procedural point, the decision holds:
We also agree with the procedure recommended by that court. The Court of Appeals recognized, as our guidelines do . . . that dependency benefits may be considered when determining the amount of child support and furnish a basis for a modification of child support. "As in this case, the federal government sometimes takes years to make a decision, 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." Although we think it prudent for a noncustodial parent who has applied for social security benefits to file a motion for modification on the basis of a change of circumstances, 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.
84 Conn.App. 403, 413-4 (citations omitted)
Washburn is a trial court decision even more closely answering the question presented here. The obligor sought a credit for social security payments to his child's mother against current support, which the court granted. He sought an additional credit for an amount she had received as a lump-sum applicable to a period when he was paying support calculated on the basis of his disability insurance payments, after the insurer recaptured from him the amount of the social security payment. In the words of that court, "the question remains . . . whether the plaintiff is 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 is the accumulation of monthly benefits paid for a specific period of time during which the plaintiff had paid his full child support . . . [t]he answer must be no. Any excess is deemed a gratuity to the extent that it exceeds the amount of support mandated by the decree." The Tarbox court cited this case with approval. This court will accept it as a proper articulation of the law on this issue, and hold that appellant has failed to make a claim which the magistrate or a court can grant.
Before concluding, this court would be remiss if it did not comment on the assertion at page eight of appellant's brief that "[t]he Tarbox court did give the Payor a credit for $21,000 when the disability insurance was received." The clear implication of this statement is that the credit was in recognition of the lump-sum payment. Not so. The dissolution judgment had ordered obligee to pay obligor a property settlement of $21,000 which remained outstanding at the time the post-judgment support issues were litigated. This "credit," therefore, was irrelevant to the disputed issue and it was a misreading of the case, at best, to cite it as a reason why appellant is entitled to a credit of an entirely distinct character.
III. CONCLUSION
The magistrate's determination that the appellant's claims did not have a basis in the law, which he made in addition to his comments on Judge Jongbloed's orders, was sound. Following proper legal authorities, he allowed appellant to zero out an arrearage that had accrued under prior orders. As to the credit against future support, appellant knew he had a social security application pending all the way back in September of 2007, he also knew or should have known of the recapture provisions of his disability policy, and yet, despite filing three motions to modify the 2007 order, he elected not to proceed to a hearing on the merits of that issue until 2011, or arguably December of 2010, and then upon a new motion that followed the social security coming online. Any relief afforded to him at this time would be retroactive and would violate the constraints set forth in § 46b-86(a). The magistrate's ruling, in light of the authorities cited, was correct.
For the foregoing reasons, the appeal is dismissed.