Opinion
No. FA 88-0354343S
April 6, 1992
MEMORANDUM OF DECISION
This action of petition for paternity was filed on December 8, 1988. After a trial by jury the defendant was found to be the father of the child Hali Miller. A hearing was held on March 9, 1992 to determine the present and past child support obligations of the defendant in accordance with Conn. Gen. Stat. 46b-171.
Sec. 46b-171 (Formerly Sec. 52-442). Judgment and order of court or family support magistrate. If the defendant is found to be the father of the child, the court or family support magistrate shall order him to stand charged with the support and maintenance of such child, with the assistance of the mother if she is financially able, as said court finds, in accordance with the provisions of section 17-82e, 17-295, 17-324, subsection (b) of section 17-578, section 17a-90, 46b-129, 46b-130 or 46b-215 to be reasonably commensurate with the financial ability of the defendant, and to pay a certain sum periodically until the child attains the age of eighteen years; and the court or family support magistrate shall order him to pay the amount thereof to the complainant, or, if a town or the state has paid such expense to the town or state, as the case may be, and shall grant execution for the same and costs of suit taxed as in other civil actions, together with a reasonable attorney's fee; and may require him to become bound with sufficient surety to perform such orders for support and maintenance. The court shall also have authority to make and enforce orders for the payment by any person named herein of unpaid support contributions for which the defendant is liable in accordance with the provisions of sections 17-82e, 17-295, subsection (b) of sections 17-578, 17a-90, 46b-129 or 46b-130. If he fails to comply with any such order, the court or family support magistrate may commit him to a community correctional center, there to remain until he complies therewith; but, if it appears that the mother does not apply the periodic allowance paid by him toward the support of such child, and that such child is chargeable, or likely to become chargeable, to the town where it belongs, the court, on application, may discontinue such allowance to the mother, and may direct it to be paid to the selectmen of such town, for such support, and may issue execution in their favor for the same. The provisions of section 17-323a shall apply to this section. The clerk of the court which has rendered judgment for the payment of money for the maintenance of any child under the provisions of this section shall, within twenty-four hours after such judgment has been rendered, notify the selectmen of the town where the child belongs. Any order for the payment of support for any such child may at any time thereafter be set aside, altered or modified by any court issuing such order upon a showing of a substantial change in the circumstances of the defendant or the mother of such child or upon a, showing that such order substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. No such support orders may be subject to any retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for a modification of an existing support order from the date of service notice of such pending motion upon the opposing party pursuant to section 52-50. Failure of the defendant to obey any order for support made hereunder may be punished as for contempt of court and the costs of commitment of any person imprisoned therefor shall be paid by the state as in criminal cases.
At the hearing the following issues were raised: 1. Is the defendant liable for the past support of the child only or is he liable for the support and maintenance of the mother and child as a unit? 2. Since the mother and child have been recipients of Aid to Dependent Children (AFDC) during the period in question are the father's past child support payments based upon his ability to pay during those years or are they based solely upon what the State has paid on behalf of the child/mother unit? 3. Is the defendant liable for attorneys fees for private counsel when the petitioner could have had the entire matter prosecuted by the Attorney General's office alone?
I
The defendant has argued to this court that he is only financially responsible for the exact AFDC costs the state of Connecticut has paid for the child Hali and not any of the costs of maintenance of the caretaker mother. In Castellani v. Criscuolo 39 Conn. Sup. 485 (1983) the Appellate Court found that the fact that the plaintiff was eligible for AFDC created a presumption that her support was necessary for the proper maintenance of the child. Our court relied heavily upon the reasoning of Rodriguez v. Vowell 472 F.2d 622, 624-25 (5th Circ. 1973) which stated:
". . . .Recognizing the inseparability of the needs of the child from the needs of the relative with whom the child is living, 401 of the Act ( 42 U.S.C. § 601) emphasizes that the purpose of the AFDC program is to help the child by preserving and strengthening the family entity. Congress appreciated that granting aid to the dependent child alone would not fully meet the child's need for care and therefore required that the caretaker be a relative of a specified degree so that the caretaker would have a natural concern for the child's welfare. Thus, in measuring need, the need of the family unit is the question, not the need of the child alone; . . .
Rodriguez at 624-25.
Here the state AFDC costs were for the maintenance of a family of two, not for the child alone. To allow the defendant to repay for the child alone would allow him to financially benefit from the humiliating experience of being supported by the State of Connecticut at a financial level that must be characterized as minimal survival. During the trial the defendant offered scant evidence that the caretaker mother worked "under the table" for short durations and that she lived in a unit that could or should have disqualified her for AFDC payments. None of that evidence either individually or in concert rebuts the presumption that the AFDC benefits paid to the mother/daughter were not necessary for their proper care and maintenance. This court finds that the defendant is liable for the costs of maintenance of the mother and daughter while on AFDC.
II
Pursuant to 46b-160 (a) the defendant is liable for the support of the child from August 6, 1986 to present. He maintains that when the court assesses the past support that he should only pay exactly what the state has paid to the support of the unit and not base the payments on his ability to pay during the applicable period. Based upon the evidence presented this court finds that the total amount paid to the mother/daughter unit by the state of Connecticut was approximately $24,000. The defendant during the same period of time based on his ability to pay, would have been able to pay $48,000 in child support. The defendant asks this court to accept a tortious reading of the statute, Conn. Gen. Stat. 46(b)-171, that defies common sense. In essence the defendant asks this court to read that the statute requires a strict dollar for dollar reimbursement for past support based upon the AFDC payments paid by the State, but agrees that his ability to pay is the proper standard for future support. To adopt such a position would allow fathers to delay acknowledging their parental responsibilities while their children are on welfare, especially in cases where the father's ability to pay exceeds the minimal amount paid by welfare by the State. Reading the statute as a whole this court finds that it must be interpreted that "ability to pay" is the standard used to set both past and future support payments. To rule otherwise would compound the financial deprivation the child experiences by being on welfare and allow a financial windfall to the father who had the ability to pay more than the meager state AFDC payment but chose not to do so.
The child support guidelines issued pursuant to Public Acts 1989, No. 89-203, establish a level of child support based on the actual income of the payor or payee.
Here, future support payments based on the defendant's ability to pay, has the effect of immediately putting more money into the unit, so much so, that the plaintiff and her child are no longer eligible to be supported by the State. While more dollars to live on does not necessarily guarantee a better life for his child, those dollars, if applied properly, have to better the child's lifestyle directly or indirectly. This court finds that the defendant owes past support, based upon his ability to pay, in the amount of $48,732.
Connecticut Gen. Stat. 46b-171 allows the court to order attorney's fees that are "reasonably commensurate with the financial ability of the defendant." Here the defendant asks this court to deny any counsel fees to the plaintiff because she could have been represented by the State's Attorney General for no fee, and that it was not necessary to hire private counsel to prosecute the paternity petition. While recognizing that the plaintiff could have chosen to have the State Attorney General's office pursue this matter alone, the fact is that she hired private counsel who worked symbiotically with the Attorney General's office to bring the matter to trial and to its successful conclusion. This court finds that attorney's fees in the amount of $11,046.94 are reasonable.
In finding what is owed by the defendant father this court will make the following payment schedule taking into consideration the financial income of the defendant father.
1. The court finds the Bill of Costs to to be $3,048.85, that is to be paid within 30 days of this order.
2. That attorney fees in the amount of $11,046.94 will be paid at the rate of $2400 per year payable on or before January 15th of each year. First payment due will be 1993. The balance shall be carried at the rate of 5% per year compounded yearly.
3. The past child support due of $48,732 shall be payable at the rate of $50.00 per week until the entire balance is paid off. Recognizing that the amount to be paid to the State of Connecticut for AFDC support is in the $24,000 to $30,000 range this court orders that once the state obligation is fulfilled, a Trust Fund be started in the child's name, with both parents as trustees for the sole purpose of setting aside money for college expenses for the child, Hali Miller. If the child elects not to pursue accredited higher education once the entire debt is paid off, the fund will be dissolved and distributed to Hali Miller.
4. That the defendant maintain medical insurance for the minor child at his cost covering any medical, dental and vision needs and the parties split equally all unreimbursed medical, psychiatric/psychological, dental, orthodontic and optical costs. That the signature of the plaintiff shall constitute a valid authorization for submission of medical claims for the minor child, in accordance with Conn. Gen. Stat. 46b-84 (c).
5. The defendant shall maintain a $100,000 term life insurance policy naming the minor irrevocable beneficiary until she reaches the age of eighteen.
6. That the defendant have reasonable rights of visitation to see his daughter. Plaintiff shall consult with defendant regarding medical, religious and educational decisions affecting the minor child and the parties shall use their best efforts to mutually resolve any disputes regarding said decisions.
NORKO, JUDGE.