Opinion
No. FA 00-0338184 S
January 31, 2006
MEMORANDUM OF DECISION
Plaintiff John Minalgo has filed two appeals from decisions of Family Support Magistrates in his case. In the plaintiff's first appeal, he claims that Magistrate Strada erred in denying his motion for modification of child support on March 31, 2004. There was evidence before the magistrate, including the plaintiff's own admission, that at about the time of the motion the plaintiff owed the defendant approximately $1,600 in prior child support. (March 31, 2004 Tr., pp. 8-9, 12-14, 16-17.) Accordingly, the magistrate properly invoked Practice Book § 25-26(a), which provides for the judicial authority "in its discretion . . . [to] determine whether any modification of current . . . support shall be ordered prior to the payment, in whole or in part as the judicial authority may order, of any arrearage found to exist." (March 31, 2004 Tr., p. 17.)
The plaintiff argues on appeal that he had no child support arrearage because the first paragraph of § 4.1 of his April 2001 divorce agreement provided that the plaintiff would not pay child support until he had completed the process of building a house, which he never built. There was discussion of § 4.1 at the hearing, but the plaintiff never specifically claimed that the first paragraph of § 4.1 nullified any arrearage that he had at the time. Therefore, under the general rule requiring preservation of claims for review, this argument is not a proper ground for appeal. See Practice Book § 60-5; Strobel v. Strobel, 73 Conn.App. 488, 491, 808 A.2d 1138, cert. denied, 262 Conn. 928, 814 A.2d 383 (2002). The magistrate instead focused on the second paragraph in § 4.1, which provided that the plaintiff would pay a separate, pre-February 2001 arrearage of $3,200 by no later than October 1, 2001. The magistrate found that the plaintiff had satisfied that obligation. (March 31, 2004 Tr., pp. 6-8.)
In full, § 25-26(a) provides:
Upon an application for a modification of an award of alimony pendente lite, alimony or support of minor children, filed by a person who is then in arrears under the terms of such award, the judicial authority shall, upon hearing, ascertain whether such arrearage has accrued without sufficient excuse so as to constitute a contempt of court, and, in its discretion, may determine whether any modification of current alimony and support shall be ordered prior to the payment, in whole or in part as the judicial authority may order, of any arrearage found to exist.
The plaintiff also complains that the magistrate erred by denying the motion for modification outright rather than ordering payment of the arrearage. However, the rule provides that the magistrate shall "determine whether any modification of current . . . support shall be ordered prior to the payment . . . of any arrearage . . ." It thus authorizes the magistrate to determine, as he did here, that no modification of support was to be ordered. Presumably, the plaintiff was free to pay the arrearage and then move again for modification.
The plaintiff, in fact, later made a lump sum arrearage payment of almost $11,000 and, on April 28, 2005, filed another motion to modify child support. (May 18, 2005 Tr., p. 4.) Magistrate McCarthy's May 18, 2005 ruling on this motion is the basis for the plaintiff's second appeal.
The plaintiff contends that the magistrate erroneously took into account the income earned and child support payments received by the plaintiff's new wife in determining the plaintiff's gross income for purposes of the Child Support and Arrearage Guidelines ("guidelines"). Although there was discussion of these matters at the hearing, and the magistrate mentioned them in his decision, an examination of the decision reveals that he did not in fact take them into account in deciding the appropriate amount of child support. (May 18, 2005 Tr., pp. 11-12, 22-23, 42.) The magistrate initially rounded off the plaintiff's gross income, as reported on his 2004 federal Schedule C ("Profit or Loss from Business (Sole Proprietorship)"), from $54,325 to $54,000. The magistrate next deducted all reported expenses except for depreciation, which he had discretion to exclude. See Stoner v. Stoner, 163 Conn. 345, 352-53, 307 A.2d 146 (1972). The magistrate rounded off the total of those deductions to $9,000, and then subtracted that amount from the "gross gross" income for an adjusted gross income of $45,000. The magistrate then deducted an additional $3,000 representing the $3,126 in cost of goods sold on the Schedule C, for a further adjusted gross income of $42,000. (May 18 Tr., pp. 34-39.) That annual amount equates to $808 per week, which is the figure that the magistrate used to calculate net income after taxes and ultimately the plaintiff's weekly child support payment under the guidelines. (May 18, 2005 Tr., pp. 39-43.)
The guidelines are set forth at § 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies (August 2005). See Unkelbach v. McNary, 244 Conn. 350, 352 n. 1, 710 A.2d 717 (1998). The following items are excluded from the definition of "Gross income" under § 46b-215a-1(11)(B)(i) and (v): "support received on behalf of a child who is living in the home of the parent whose income is being determined" and "the income and regularly recurring contributions or gifts of a spouse or domestic partner." See generally Unkelbach v. McNary, supra, 356-65; Fish v. Igoe, 83 Conn.App. 398, 405 n. 6, 849 A.2d 910, cert. denied, 271 Conn. 921, 859 A.2d 577 (2004).
On page 42 of the transcript, for example, the magistrate concluded by stating:
I have made a determination, based on his tax return, of what his gross is: gross meaning — not really gross, but it's his gross gross minus allowable deductions. I have found that to be $42,000, after considering his business expenses, his living expenses, his wife's income, his wife's child support: taken [sic] all of those things into consideration and find that to be a fair number, 42,000. That's what we're working off. Then he gets tax deductions from the 808. That's my finding. He doesn't get another round of deductions. If I'm wrong, I'm wrong.
According to the Schedule C, total expenses were $23,355 and depreciation was $13,382. The magistrate therefore should have used an adjusted expense figure of $10,000 rather than $9,000, and found the adjusted gross income to be $44,000 rather than $45,000. The plaintiff, however, does not claim this miscalculation as error. It is essentially de minimus, as it would ultimately reduce child support payments by approximately $1 per week.
The plaintiff suggests that the magistrate erred by considering this figure to be the plaintiff's "net income" for guidelines purposes. The magistrate made clear, however, that, even after the adjustments, the $42,000, which translates into approximately $808 per week, represented gross income. (May 18, 2005 Tr., pp. 39-42.) From that figure, the magistrate appropriately deducted taxes to arrive at net income. (May 18, 2005 Tr., pp. 39-42.)
In contrast, by including the additional income and child support payments to the plaintiff's new wife, the plaintiff's weekly net income under the guidelines would have been $1,048 per week. (May 18, 2005 Tr., p. 22-23.) This amount greatly exceeds the $808 in gross weekly income attributed to the plaintiff by the magistrate, which yielded a net income of $585 per week after taxes on the guidelines worksheet in the record. Thus, it is apparent that, although the magistrate unfortunately referred in his decision to the additional income and child support payments to the plaintiff's wife, see note 4 supra, the magistrate did not actually include those receipts in his calculation of the plaintiff's income for purposes of the guidelines.
The $1,048 figure derives from adding the plaintiff's net weekly income of $418, as stated on his financial affidavit, to the net weekly income of $360 of the new wife and her child support payment of $270 per week. (May 18, Tr., pp. 22-23.)
The decisions of the family support magistrates are affirmed.
It is so ordered.