Opinion
HHDFA154077658S
01-22-2016
Elizabeth Mingo v. Sadiki S. Blake
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael A. Albis, J.
BACKGROUND
The defendant father, Sadiki Blake, has appealed a decision of the family support magistrate (hereinafter " FSM") dated March 19, 2015. On that date the FSM entered an order of child support payable by the defendant with respect to his minor child (Sadeem, born April 30, 2001) and made the order retroactive for a period of three years before the date of the hearing. The matter was originally brought in the Family Support Magistrate Court by way of a Uniform Support Petition dated June 11, 2014, initiated by the State of Florida on behalf of the plaintiff mother.
Although the case caption on certain documents in the file states the name of the defendant as " Blake Sadiki, " it appears from the totality of the file (including his own statement of his name at the hearing) that his correct name is " Sadiki Blake."
The defendant, who was present at the hearing, is incarcerated. Finding that the defendant had no current income, the FSM nevertheless entered orders of support on the basis of two pending personal injury claims in favor of the defendant, with the emphasis on the larger claim. In doing so, the FSM relied on General Statutes § 46b-215e concerning support orders against incarcerated obligors, which provides as follows:
The record reflects that Family Support Magistrate Referee Lifshitz took judicial notice of two pending civil actions in which the defendant was a plaintiff. (Tr. 37-38, March 19, 2015.) These two actions are Blake v. Gamache, Docket No. HHD-CV-12-6036188-S, and Blake v. Geico General Insurance Co., Docket No. HHD-CV-14-6049661-S. Although Family Support Magistrate Referee Lifshitz was aware of both actions, the Blake v. Gamache action, as the much more valuable claim, principally formed the basis of his decision to impose a current order of support. For purposes of this appeal the court confines most of its discussion to the larger claim, as it clearly was the essential basis for the FSM's orders.
Sec. 46b-215e. Initial or modified support order where child support obligor is institutionalized or incarcerated . Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income and substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order.
The defendant has appealed from the FSM's decision to this court pursuant to General Statutes § 46b-231(n). The defendant argues that it was improper for the FSM to use a pending unliquidated personal injury claim as the basis for an order of current child support, and further that it was improper to make the order retroactive during a period of time when the defendant was unable to work and had not received any proceeds of the claims.
STANDARD OF REVIEW
This court's review of the decision of the FSM is governed by General Statutes § 46b-231(n), where the applicable standard of review is set forth in the following subsection:
(7) The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support 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.
The court has considered the defendant's appeal in light of the applicable statute. It has reviewed the record, including the transcript of the March 19, 2015, proceedings in the family support magistrate court, and considered the oral arguments and written briefs of the parties.
DISCUSSION
The resolution of the appeal requires the court to address two main issues. The first is whether it was proper for the FSM to consider the defendant's pending personal injury claim as a " substantial asset" within the meaning of General Statutes § 46b-215e. If the answer to that question is in the affirmative, the second is whether the orders of current and retroactive support that the FSM entered on the basis of that asset were appropriate. The court discusses each question in turn.
1. May the incarcerated defendant's unliquidated personal injury claim be considered a " substantial asset" pursuant to General Statutes § 46b-215e?
General Statutes § 46b-215e governs a court's authority to impose a current child support order upon an incarcerated obligor. Although § 46b-215e does not explicitly define the phrase " substantial assets, " the statute indicates that " an initial order for current support [shall be] . . . based upon the obligor's . . . substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a." (Emphasis added.) Thus, the plain language of the governing statute directs a court to consider the child support guidelines when imposing a current order of child support upon an incarcerated obligor.
The child support guidelines established pursuant to General Statutes § 46b-215a are contained in Section 46b-215a-2b of the Regulations of Connecticut State Agencies, which provides in relevant part that " [t]his section shall be used to determine the current support . . . of all child support awards within the state, subject to section 46b-215a-3 of the Regulations of Connecticut State Agencies ." (Emphasis added.) Regs. Conn. State Agencies § 46b-215a-2b(a)(1). Section 46b-215a-3 of the Regulations of Connecticut State Agencies sets forth the " deviation criteria" that courts are permitted to consider upon an adequate finding that the presumptive amount of child support established by application of the guidelines would be inequitable or inappropriate. See, e.g., Kavanah v. Kavanah, 142 Conn.App. 775, 66 A.3d 922 (2013); see also Regs., Conn. State Agencies § 46b-215a-3(a). Section 46b-215a-3(b)(1) of the Regulations of Connecticut State Agencies provides in relevant part that " [t]he resources that may justify a deviation from presumptive support amounts under this subdivision are limited to the following: (A) substantial assets, including both income-producing and non-income-producing property . . ." (Emphasis added.)
References and citations to the child support guideline regulations herein are to the regulations in effect on the date of the decision from which the defendant has appealed.
When read together with the governing statute, § 46b-215e, the Regulations of Connecticut State Agencies permit a court to consider an incarcerated obligor's income-producing and non-income-producing property to establish a current order of child support upon an adequate finding that the presumptive amount of child support would be inequitable or inappropriate. Our appellate courts have squarely held that a chose in action is deemed property in other contexts. Specifically, courts have held that a chose in action is " property" subject to distribution under General Statutes § 46b-81.
General Statutes § 46b-81 provides a court with authority to distribute and assign property at the conclusion of a dissolution proceeding.
For example, in Rousseau v. Perricone, 148 Conn.App. 837, 847, 88 A.3d 559 (2014), the Appellate Court addressed the question of " whether the pending civil action [in that case] [was] 'property' subject to distribution under General Statutes § 46b-81." Id., 847. After discussing relevant Connecticut Supreme Court precedent, the Appellate Court held that the cause of action in the separate civil action was property for purposes of § 46b-81. Id., 849. Notably, the court stated that " [t]here is no doubt that a right in action, [when] it comes into existence under common-law principles, and is not given by statute as a mere penalty or without equitable basis, is as much property as any tangible possession . . ." Id., quoting Siller v. Siller, 112 Conn. 145, 150, 151 A. 524 (1930).
The Appellate Court discussed Lopiano v. Lopiano, 247 Conn. 356, 752 A.2d 1000 (1998) (personal injury award is property under § 46b-81) and Mickey v. Mickey, 292 Conn. 597, 974 A.2d 641 (2009) (property interests that are presently existing and enforceable are subject to distribution, while mere expectancies are immune from distribution).
The Appellate Court's holding in Rousseau v. Perricone, supra, also finds considerable support in other decisions. See, e.g., Mickey v. Mickey, 292 Conn. 597, 624 n.20, 974 A.2d 641 (2009) (discussing Smith v. Smith, 249 Conn. 265, 286, 752 A.2d 1023 (1999), and noting that defendant in Smith " had obtained a chose in action during the course of the marriage, which is clearly a property interest subject to distribution"); Dolak v. Sullivan, 145 Conn. 497, 504, 144 A.2d 312 (1958) (" chose in action" is in tangible personal property"); Siller v. Siller, supra, 112 Conn. 150 (when right in action comes into existence, it is property like any tangible possession); see also Raccio v. Raccio, 41 Conn.Supp. 115, 122, 556 A.2d 639 (unliquidated tort claim is part of estate under § 46b-81).
The case law, therefore, makes it clear that even an unliquidated claim or chose in action constitutes an asset. The defendant, in effect, argues that the court must apply the statute as if it included the word " liquid" between the words " substantial" and assets, " but neither the language of the statute nor the pertinent regulations require or suggest such an interpretation. Certainly the legislature could have inserted the word " liquid, " or a word of similar import, into the statute had that been its intent. To the contrary, the statute expressly references the child support guideline regulations, which provide that even " non-income producing property" may constitute a substantial asset justifying a deviation for purposes of child support. The regulations do not limit " substantial assets" to those which currently produce cash.
The court concludes that the pending personal injury claim of the defendant was properly considered an asset by the FSM. And while the claim was unliquidated and the precise value undetermined at the time of the hearing, there was ample evidence from which he could properly conclude that the asset was " substantial."
2. Were the orders of current and retroactive support that were entered on the basis of the defendant's " substantial assets, " as described above, appropriate?
The defendant argues that even if his pending personal injury claim is a substantial asset, the FSM acted improperly in the manner he assigned a value to it, entered an order of current support based upon the value so found, and made the order retroactive.
The record shows that the FSM found the claim to have a gross value of approximately $300,000 before deductions for such items as the defendant's legal fees to pursue the claim. The finding of value was based primarily on the defendant's own testimony that he expected to recover $300,000 to $400,000 with respect to the claim. The FSM also took into account the offer of compromise made to the defendant in his separate personal injury litigation relating to the claim, of which the FSM took judicial notice, whereby he was offered $28,000 to settle the case. While the offer was far lower than the defendant's assessment of the value of his case, it was an indication that the defendant's claim was deemed serious and valid enough by the opposing party to warrant more than a nominal settlement offer.
Tr. 47, March 19, 2015.
Tr. 12, March 19, 2015.
Based on this evidence, the FSM attributed a tentative value to the claim at the low end of the defendant's own estimate, adding no additional value to a second smaller pending injury claim in favor of the defendant. The FSM then reduced the gross value by one-third for anticipated legal fees and expenses. In determining an appropriate amount by which to deviate from the guideline support figure of zero, the FSM amortized the $200,000 balance over a period of ten years to compute an equivalent annual net income of $20,000 and a corresponding weekly income of $400. On that basis, the FSM entered a weekly child support order of $100. Nothing in the child support guideline regulations required the FSM to conduct and explain such a precise mathematical basis for the amount of his upward deviation, but that he did so is evidence of his reasoned approach. If anything, the defendant received a lower support order from the FSM's use of this analysis than if the estimated net proceeds had not been so amortized.
Tr. 38, March 19, 2015.
Having determined a weekly support amount, the FSM then made the order retroactive for a period of three years prior to the date of the hearing, noting that the claim in question was in existence throughout that period of time. The three-year retroactive period was within the time period authorized by General Statutes § 46b-215(a)(7)(A). The FSM calculated an arrearage of $15,600 as of the date of the hearing and ordered weekly payments of $20 toward the arrearage.
Tr. 50-51, March 19, 2015.
At the time he entered the orders, the FSM found that the defendant's actual current weekly income was zero and that therefore his presumptive weekly child support obligation under the child support guideline regulations was also zero. However, he further found that an order using the presumptive guideline amount would be unfair, in view of the substantial asset represented by the personal injury claim, and that an upward deviation to $100 per week on the basis of that asset was warranted.
Tr. 45, March 19, 2015.
Finally, the FSM took into account the fact that the defendant had not yet collected on his claim and that the amount of his ultimate gross recovery might be something other than $300,000. The FSM addressed these issues in two ways. First, he stated that any court action to enforce the payment of child support should be deferred until there is " clear evidence of actual ability to pay, " such as the settlement of the lawsuit. Second, he advised the defendant of his opportunity to file a motion to open the judgment for the purpose of reassessing the value of the claim, if appropriate, after the personal injury case was resolved. The FSM stated on the record that, in his view, a discrepancy between the $300,000 value he assigned to the claim and the ultimate actual recovery would be grounds to open the judgment.
Tr. 50, March 19, 2015.
Tr. 55-56, March 19, 2015.
Tr. 47, March 19, 2015.
The question for this court is whether the orders made by the FSM withstand review under the applicable statutory standard. In addressing that question, this court first concludes that the FSM's valuation of the defendant's personal injury claim was supported by the evidence, in particular the defendant's own testimony. A court is entitled to accept the testimony of a party as to the value of that party's own property. Sunbury v. Sunbury, 13 Conn.App. 651, 660, 538 A.2d 1082 (1988). This remains true even if the party's only qualification as to the property's value is his ownership of it. Sachs v. Sachs, 22 Conn.App. 410, 422, 578 A.2d 649 (1990).
Having assigned a value to the claim based upon the evidence, the FSM made a significant and reasonable reduction of the value to account for legal fees and costs. He amortized the resulting net value over a reasonable period of time.
The FSM then entered an order of weekly support based upon a valid deviation from the child support guidelines. General Statutes § 46b-215e and the relevant Regulations of Connecticut State Agencies permit a court to deviate from a presumptive order of support upon an adequate finding that the presumptive order would be inequitable or inappropriate. The record presently before the court indicates that the FSM made such a finding. See, e.g., Syragakis v. Syragakis, 79 Conn.App. 170, 177, 829 A.2d 885 (2003) (court found that defendant had " substantial assets" and that " such amount would be inequitable or inappropriate in this particular case"). Because Rousseau v. Perricone, supra, 148 Conn.App. 837, and other relevant cases hold that a chose in action is property and because an obligor's substantial assets, including income-producing and non-income-producing property, can justify a deviation from a presumptive order of support; Regs. Conn. State Agencies § 46b-215a-3(b)(1)(A), the defendant's pending civil actions in the present case are substantial assets under the applicable deviation criteria and pursuant to General Statutes § 46b-215e.
Family Support Magistrate Referee Lifshitz appears to have made these necessary findings to warrant consideration of the deviation criteria. See, e.g., (Tr. 43, March 19, 2015) (" There is a deviation factor specifically for substantial assets. A chose in action is an asset. That case says it's an asset, and therefore, it gives the Court grounds to deviate"); (Tr. 45, March 19, 2015.) (" [T]he other way I could do it is to say, [w]ell, no deviation. His income is zero. The order is zero. The arrearage is zero. However, that wouldn't be fair to the child and the custodial parent or the State, and I would have to say there would be some kind of further chapter." [Emphasis added.]) Although Family Support Magistrate Referee Lifshitz did not use the specific words of " inequitable or inappropriate, " he indicated that strict application of the guidelines in this case would not be " fair." His choice of words in finding grounds for deviation has not been raised as an issue in this appeal.
Finally, the FSM made the order retroactive for a period less than the maximum allowed by statute; he made statements on the record to protect the defendant from contempt for nonpayment until the defendant had in fact settled the case or otherwise acquired the ability to pay the order; and he opened the door for the defendant to obtain a review and adjustment of the order when the claim settled. At the same time, the FSM noted that the finding of the arrearage made it possible for the personal injury claim to become the subject of a lien to secure payment of support when the claim became an amount due and payable under a judgment or settlement.
Tr. 53, March 19, 2015; General Statutes § 52-362d(d).
The creation of such a lien could prove critical to the collection of support for the minor child. As noted above, the party whom the defendant Sadiki Blake was suing in his personal injury action filed an offer of compromise proposing a payment of $28,000 to the defendant in settlement of the claim. Mr. Blake did not accept the offer, presumably for good reason in the belief that his claim was worth even more. However, the very existence of the offer demonstrates the suddenness with which the claim might become liquid and accessible to the defendant, with no prior notice to the mother or the state in the absence of a lien on the proceeds.
Given the FSM's correct conclusion that the personal injury claim was a substantial asset, it is difficult to see how he might have better addressed both the right of the child to support and the right of the defendant to pay no more than an appropriate amount when he became able to do so. The defendant might prefer not to have a portion of his eventual recovery earmarked for the support of his child, but the denial of that preference is not grounds to reverse or modify the decision of the family support magistrate under General Statutes § 46b-231(n)(7) of the Connecticut.
In his brief the defendant claims that he will suffer present harm to his credit rating from an unpaid child support order, even under these circumstances, but there is no evidence in the record demonstrating the current status of his credit rating or that actual harm is likely to occur. standards set forth in General Statutes § 46b-231(n)(7) of the Connecticut.
CONCLUSIONS
For the foregoing reasons, this court concludes that the decision of the family support magistrate was not " clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, " " arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, " or otherwise improper under the
ORDER
The decision of the Family Court Magistrate is hereby affirmed and the appeal hereby denied.
SO ORDERED.