Opinion
No. TTD FA00 0074202-S
September 7, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTIONS FOR CONTEMPT AND MODIFICATION AND DEFENDANT'S MOTION FOR MODIFICATION
This matter comes before the court on plaintiff's motions for contempt (##112, 119, 125, 127, 137), plaintiff's motions to modify (##113 and 128) and defendant's motion to modify (#122). For the following reasons, plaintiff's motions for contempt (# 112, 119, 125, 127, 137) are denied and defendant's motion to modify (#122) is granted. Notwithstanding the court's denial of the plaintiff's motions for contempt the court finds a child support arrearage as hereinafter set forth.
This memorandum of decision does not address plaintiff's motions to modify #128 and #113. At the hearing which is the subject of this memorandum of decision, the court refused to hear evidence on plaintiff's motion to modify (#128) for the reasons that (1) plaintiff's motion #128 is the subject of a Family Services evaluation previously ordered by the court and as yet not completed; and (2) the GAL indicated that she was not prepared to go forward on #128 Additionally plaintiff's motion to modify (#113) was disposed of at the short calendar of August 28, 2006.
I. FACTS AND NATURE OF THE PROCEEDINGS
By complaint dated October 10, 2000, plaintiff commenced this action for dissolution of marriage and other relief. A judgment of dissolution was entered by the court (Klaczak, J.) on January 22, 2001. Incorporated into the judgment was a written agreement of the parties which, inter alia, provided for custody and support of the minor child. As agreed by the parties, the court ordered joint custody, primary residence with the plaintiff and reasonable rights of visitation to the defendant; in addition, the defendant was ordered to pay $151.28 per week in child support.
In October 2004, the minor child, Linda, came to live with defendant; and plaintiff was allowed liberal rights of visitation. Despite these de facto modifications of the judgment of dissolution, neither party returned to court to modify the judgment. Thereafter, on July 22, 2005, plaintiff filed a motion for contempt (#112) alleging that defendant had failed to pay child support and a motion for modification (#113) seeking a court order of specific visitation. Motions #112 and 113 were followed on September 27, 2005, by plaintiff's additional motion for contempt (#119) alleging that defendant had interfered with her visitation on the weekend of September 24-26, 2005.
In response to plaintiff's motions, on October 28, 2005, defendant filed a motion to modify child support (#122). Thereafter on November 16 and June 5, 2006, plaintiff filed additional motions for contempt (#125 and 137) alleging defendant had not paid child support. Additionally on December 5, 2005, she filed a motion for contempt (#127) alleging interference with visitation and a motion to modify custody (#128). On November 14, 2005, the court appointed Kerry Tarpey as guardian ad litem for the minor child.
The court heard testimony over the course of one day in August 2006. Witnesses included the parties and David Shaiken. The court finds Shaiken to be highly credible and the parties to be credible in part and not credible in part. Plaintiff's counsel filed proposed orders and the court heard oral argument. In addition, the court reviewed and considered the exhibits, sworn financial affidavits, claims for relief, proposed orders and closing arguments.
Shaiken is an attorney at law and formerly represented the defendant. Shaiken prepared and filed defendant's motion to modify (#122).
II. DISCUSSION A.
In two of her motions for contempt (##119 and 127), plaintiff alleges respectively that defendant "[withheld] visitation from the Plaintiff Mother for the weekend of September 24-26" and "refused to permit the plaintiff to visit with the child." To these allegations, defendant responds that he did not interfere with plaintiff's visitation; and, further, that there is no court order according plaintiff visitation.
Motion#119.
Motion #127.
In various of her other motions for contempt (##112, 125 and 137), plaintiff alleges that since November 2004, defendant has failed to pay his court-ordered child support. Plaintiff further alleges that as of August 9, 2006, the arrearage is $13,615.20. To these allegations, defendant admits he has failed to pay child support since November 2004, but claims that he stopped paying child support in reliance upon plaintiff's representations to him that defendant need not pay support while the child resided with him.
"Courts have inherent power to coerce compliance with their orders though appropriate sanctions for contemptuous disobedience of them . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . `One cannot be placed in contempt for failure to read the court's mind.' . . . Recognizing these basic tenets, most courts, in deciding whether a contempt has occurred, have refused to expand judgments by implication beyond the meaning of their terms . . ." (Citations omitted; emphasis added). Blaydes v. Blaydes, 187 Conn. 464, 467 (1982).
"Decrees in a dissolution action cannot be modified by acts of the parties without further order of the court. Grobstein v. Grobstein, 14 Conn.Sup. 378, 379 (1946). Thus, although [a] provision of [a] separation agreement could be modified by order of the court pursuant to a written agreement of the parties; See Nelson v. Nelson, 13 Conn.App. 355, 364-65 (1988); [an] oral agreement of the parties [is] ineffective to modify [a] separation agreement incorporated in the decree of dissolution." Albrecht v. Albrecht, 19 Conn.App. 146, 151, cert. denied 212 Conn. 813 (1989).
1.
In the present case, plaintiff argues in her motion #119 that she was entitled to access to the minor child for the weekend of September 24-26, 2005, that defendant interfered with that access, and that, therefore, defendant is in violation of the orders of the court contained in the judgment of dissolution dated January 22, 2001.
There is little or no dispute as to the facts surrounding this claim. It is uncontroverted that plaintiff planned to exercise access to the minor child on September 24-26; that the child informed plaintiff that she did not want, and was not required, to visit with plaintiff; and that when informed of this, defendant told plaintiff that plaintiff could pick up the child at defendant's house. For his part, defendant denies that he said or did anything to interfere with plaintiff's planned access.
Plaintiff asks the court to conclude, based on this record, that defendant wilfully acted to prevent the child from visiting with plaintiff and that defendant's actions were in violation of the court orders of access.
As a predicate matter, for this court to find defendant in contempt, the court must find that defendant violated a court order granting rights of visitation to the plaintiff. As noted above the marriage of the parties was dissolved on January 22, 2001 and the judgment of dissolution was not modified prior to defendant's alleged contemptuous behavior of September 2005. Thus in deciding this issue, the court must look to the access orders embodied in the judgment of dissolution. A review of the judgment of dissolution reveals that the court awarded "full and liberal rights of reasonable access with the child" to the Husband, but did not enter any visitation order in plaintiff's favor.
In October 2004, however, plaintiff and defendant took it upon themselves to orally modify the judgment of dissolution to provide that primary residence of the child be with the father with reasonable rights of visitation in the mother. This agreement was never presented to the court and it never became a court order.
The parties' intent notwithstanding, self-help modifications are not transformed by mere agreement of the parties into lawful and enforceable modifications of existing court orders. Albrecht v. Albrecht, supra, 19 Conn.App. 151 (oral agreements of the parties are ineffective to modify, the separation agreement incorporated into the decree of dissolution). See also Lawrence v. Lawrence, 92 Conn.App. 212, 215-16 (2005) and cases cited therein. Thus in closing argument, plaintiff conceded, as she must, that she was relying on the court order of January 22, 2001 to prove defendant's contempt.
It is fundamental that a person cannot be held in contempt unless he is found to have violated a court order. Thus even assuming defendant's actions were intended to interfere with plaintiff's access, plaintiff has failed to prove the condition precedent to a finding of contempt — the existence of a court order prohibiting defendant's actions. Blaydes v. Blaydes, supra, 187 Conn. 467. In the present case, therefore, since there was no court order granting access rights to plaintiff, defendant cannot be held in contempt for interfering with her access. Plaintiff's motion for contempt (#119) is denied.
In a second motion for contempt (#127), plaintiff alleges that between September 2005 and December 5, 2005, defendant again interfered with her rights of visitation. At the hearing, the court erroneously believed this motion addressed child support and not plaintiff's visitation. Thus the court refused to allow evidence of defendant's alleged interference with plaintiff's visitation on dates after September 26, 2005. Since, however, motion #127 suffers from the same infirmity as motion #119, the court's ruling constitutes harmless error.
The date of the filing of motion #127.
Plaintiff's motion #127, which was filed on December 5, 2005, like her motion #119 which was filed on September 29, 2005, by necessity, relies, for a finding of contempt, on the court orders of January 22, 2001. Since the January 22, 2001 access orders did not accord plaintiff access rights, however, plaintiff has again failed to prove the condition precedent to a finding of contempt. Thus even if defendant acted as alleged by plaintiff in motion #127, this court may not hold him in contempt.
It was only on May 1, 2005, that the judgment of dissolution was first modified to afford plaintiff access.
At the hearing, the court's inquiry was limited to the weekend of September 24-26, 2005. The court also heard, however, without objection, uncorroborated testimony from plaintiff that the GAL believed that defendant was poisoning plaintiff's relationship with the child and that if this behavior did not cease, the GAL would recommend a change in custody. Although this evidence is not relevant to the present proceedings, it is highly relevant to future proceedings concerning plaintiff's motion to modify custody (#128).
This court takes very seriously any attempts by one parent to influence the other parent's relationship with their minor children. Such actions, alone, can justify a change in custody and/or primary residence. Sideleau v. Sideleau, Superior Court, judicial district of Fairfield, Docket No. FA84-0218794 (August 9, 1991, Driscoll, J.) ( 4 Conn. L. Rptr. 797) (Father's inability or unwillingness to cease expressing, in child's presence, his hatred and/or negative feelings about the mother warranted the court to allow mother and child to relocate to another state in order to permit child to develop positive relationship with mother).
2.
Plaintiff next claims that since November 2004, defendant has failed to pay his court-ordered child support. Defendant responds that, as a result of an October 2004 oral agreement between the parties, upon which defendant reasonably relied, plaintiff is equitably estopped from making this claim.
At the hearing, plaintiff testified that in October 2004, she separated from her then husband, Rob Marfucci. As a result she moved into David Nation's apartment in Ellington, Connecticut. According to plaintiff, this arrangement was expected to last three weeks while a house in South Windsor was being refurbished. Since there was insufficient room in Nation's apartment, plaintiff moved without the child. Plaintiff asked defendant if the child could reside with him during this transition and further told defendant that during this period, she did not expect defendant to pay child support if Linda was staying with him.
Thereafter, defendant took the stand and testified that in October 2004, plaintiff requested that Linda be allowed to live with him for approximately three months while she refurbished a home in South Windsor. At the same time plaintiff told defendant that in her opinion he shouldn't have to pay child support while Linda was living with him. According to defendant, he relied upon plaintiff's representations and effective November 1, 2004, he stopped paying his court-ordered child support.
Three months turned into seven or eight months and the house to be refurbished was, instead, condemned and demolished. To this day, Linda continues to reside with defendant in South Windsor and plaintiff continues to reside with David Nation in Ellington. There is no evidence that since October 2004, plaintiff ever reasserted her rights to primary residence or requested that Linda return to live full-time with her.
"Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief, and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done . . ." (Citations omitted.) Emerick v. Emerick, 28 Conn.App. 794, 803 cert. denied 224 Conn. 915 (1992).
In the present case, in October 2004, plaintiff requested that the minor child live with defendant and represented to him that she did not expect him to pay child support while the child resided with him. Linda came to live with plaintiff in October 2004, and acting in reliance on plaintiff's statements, defendant stopped paying child support. At no time prior to her motion for contempt (#112) in July 2005, did plaintiff ever inform defendant that she was reasserting her court-ordered right to child support or that she expected defendant to resume paying child support. On these facts, the court finds that in ceasing to pay child support on November 1, 2004, defendant reasonably relied on plaintiff's representations to that effect and, therefore, plaintiff is equitably estopped from asserting any claim for child support for the period November 1, 2004-July 22, 2005.
Thereafter, in July 2005, with the filing of plaintiff's motion for contempt (#112), defendant was put on notice that plaintiff was reasserting her claim to child support. At this time, both plaintiff and defendant were pro se and attempted to negotiate a resolution of the contempt motion and plaintiff's motion to modify access (#113). When that proved unsuccessful, defendant hired Attorney David Shaiken to represent him.
Also filed on July 22, 2005.
Plaintiff's motions were scheduled on a short calendar for a Monday in August 2005. Shortly before the short calendar date, plaintiff called Shaiken and requested that he agree to a continuance. Additionally plaintiff told Shaiken that she wanted to discuss the background of the issues. Shaiken warned plaintiff that whatever she told Shaiken, he was required to report to defendant and, in addition, that whatever plaintiff told Shaiken would likely be reported in court. Undeterred, plaintiff informed Shaiken that the child had stopped living primarily with plaintiff in October 2004, that plaintiff and defendant had an understanding or agreement that as long as the child resided with defendant, defendant need not pay child support and that the issue she was really focused on was visitation with the minor child. At a later point in the conversation, plaintiff reiterated that when the child was living with defendant, she did not want or need child support. Although Shaiken never testified that he reported to defendant the contents of his conversation with plaintiff, in light of his statement to plaintiff that he was required to do so, it is reasonable to assume that defendant was apprised of plaintiff's position.
There is no evidence that motions #112 and 113 were ever reclaimed by plaintiff after August 2005. Additionally, in her testimony, plaintiff admits that she never further pursued her pro se motion for contempt (#112). Further at no time after her conversation with Shaiken but prior to the filing of her motion for contempt on November 17, 2005, did plaintiff ever inform defendant or Shaiken that she was reasserting her court-ordered right to child support. Thus the court finds that from July 22, 2005-November 17, 2005, in failing to pay child support, defendant reasonably relied on plaintiff's representations to Shaiken that she did not want child support. Therefore, plaintiff is equitably estopped from receiving support during this period.
Plaintiff's motion for contempt (#125).
A different result pertains to the period November 2005 to the present. Since the filing of plaintiff's motion for contempt in November 2005, defendant has been on notice that plaintiff was reasserting her right to child support under the court order of January 22, 2001. Further, unlike the events of October 2004 and August 2005, plaintiff has not taken any subsequent action or made any subsequent statements which would have led defendant to reasonably believe that she was waiving her claim to the child support due after November 17, 2005. Plaintiff, therefore, is not equitably estopped from receiving child support for the period of November 17, 2005 to the present.
Plaintiff filed an additional motion for contempt for failure to pay child support (#137) on June 5, 2006.
The court's evaluation of whether the doctrine of equitable estoppel is applicable in a particular case may be divided into discrete time frames, based on changes in the fact scenario of that case over time. In W. v. W., 256 Conn. 657, 662, 779 A.2d 716 (2001), the Supreme Court considered whether the trial court properly estopped the nonbiological father of a minor child from denying his parenthood once the previously missing biological father had been found. In the earlier appeal of the same marital dissolution case, the Court held that the trial court had acted properly when it equitably estopped the husband from denying paternity of the wife's older child; See W. v. W., 248 Conn. 487, 505, 728 A.2d 1076 (1999). Subsequently, the mother located and contacted the child's biological father. In the second appeal, the nonbiological father argued that he should no longer be estopped from denying paternity and ceasing support payments since the putative father can be held responsible for child support.
In deciding the second appeal, the court stated: "Our previous decision affirming the trial court's application of the doctrine of equitable estoppel against the [nonbiological father] is not altered as a result of the latest developments in this case . . . We concluded [in the previous decision] that the circumstances in W. met [the test for application of equitable estoppel], and today we expand that holding to encompass the scenario as it exists at the present time." W. v. W., supra, 256 Conn. 662. The portion of the analysis relevant to the case at bar is the consideration that, as the facts of a case change over time, the determination of whether equitable estoppel applies may change as well.
Under our law in order to stop the running of a court order of child support, a party must file an appropriate motion with the court. See Lawrence v. Lawrence, 92 Conn.App. 212, 215 (2005) (a court order must be followed until it has been modified). Nonetheless, since plaintiff reasserted her claim to support in November 2005, defendant has taken no such action. Prior to November 17, 2005, defendant did, however, file a motion to modify child support (#122) in which he asked that the court terminate his child support obligation. This motion was heard at the present hearing and defendant requested that the court make any orders retroactive. The net effect of a retroactive order would be to obviate defendant's outstanding child support obligation from November 17, 2005 to the present.
Defendant's motion to modify (#122) was filed on October 28, 2005.
Defendant's request, notwithstanding, this court lacks jurisdiction to enter a retroactive order for the reason that defendant's motion #122 was not properly served. General Statute Section 46b-86(a) provides, in relevant part, that "[n]o order for periodic payment of permanent alimony or 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 pursuant to section 52-50." (Emphasis added.)
General Statute Section 52-50(a) provides: "Persons to whom process shall be directed. (a) All process shall be directed to a state marshal, a constable or other proper officer authorized by statute . . . A direction on the process `to any proper officer.' shall be sufficient to direct the process to a state marshal, constable or other proper officer."
"General Statute § 46b-86 requires that in order to modify the periodic payment of permanent alimony or support retroactively to the date a motion seeking modification was served on the opposing party, such service must be made pursuant to § 52-50 by a sheriff [now state marshal] . . . a constable or other proper statutorily authorized officer. Merely mailing a copy to opposing counsel or the opposing party . . . does not . . . comply with § 52-50." Shedrick v. Shedrick, 32 Conn.App. 147, 151 (1993) (Emphasis added).
In the present case, defendant filed his motion to modify child support on October 28, 2005. At that time defendant's counsel certified that "a copy of the . . . Defendant's Postjudgment Motion to Modify Child Support was served by United States mail, first class, postage prepaid this 24th day of October 2005 upon Tracey Laufer, 7 Forest Hill Road, Ellington, CT 06029 and Peter G. Perakos, II, Esq., Perakos Zitser, P.C., 44 Capitol Avenue, Suite 302, Hartford, CT., 06106-1706." (Emphasis added.) Such service, however, does not comply with Gen. Stat. § 46b-86(a) and strict compliance with Gen. Stat § 46b-86(a) is a prerequisite to retroactive relief. Shedrick v. Shedrick, supra, 32 Conn.App. 152. Thus the relief sought in defendant's motion, if granted at all, can only be made prospective from the date on which the motion is granted. Id. Defendant, therefore, is liable for child support for the period of November 17, 2005 to present.
Plaintiff's birth name.
Defendant also filed a motion to modify primary residence (# 126) on November 23, 2005. Assuming, without deciding, that this motion implicitly encompasses a request to terminate child support, it suffers from the same infirmity as defendant's motion of October 28, 2005 — lack of proper service thereby depriving the court of jurisdiction to issue retroactive orders. Id.
In conclusion, the court finds that by virtue of her motion for contempt (#125), filed on November 17, 2005, plaintiff reasserted her right to child support. From that date, therefore, defendant was on notice that pursuant to the court order of January 22, 2001, he was obligated to resume paying support. Nonetheless, defendant has made no such payments. As of September 8, 2006, therefore, defendant owes a child support arrearage of $6,353.76.
42 weeks × $151.28.
Having determined that defendant has failed to comply with the court's January 22, 2001 order of support, the court must go on to determine whether defendant's actions warrant a finding of contempt, and if so, the appropriate punishment to be meted out.
For a person to be adjudged in contempt of court, the court must find that the contemnor's actions constituted a wilful and deliberate disobedience of a court order. Mere failure to comply with a court order is not sufficient. Bryant v. Bryant, 228 Conn. 630, 637 (1994). The contempt remedy is particularly harsh, however, and, therefore, should be sparingly applied.
In the present case, defendant's failure to pay child support after November 17, 2005, could, on its face, be construed as wilful and deliberate disobedience of the court's prior orders. Such a finding, however, would not be appropriate in this case. On October 28, 2005, defendant's attorney filed a motion to modify and terminate child support on the grounds that defendant had primary residence of the minor child. As noted above, defendant's attorney served this motion by causing the motion to be sent by United States mail to plaintiff and to her attorney. This manner of service, however, deprives the court of jurisdiction to modify child support retroactively.
Defendant was entitled, nevertheless, to assume that his attorney complied with all statutes and court rules and that his attorney had protected his rights to retroactivity. Additionally there is no evidence that defendant knew that his attorney's service of this motion by mail was insufficient to preserve a claim for retroactive modification of child support. Thus since defendant had filed a motion to terminate child support prior to plaintiff's filing of motion #125, which, if properly served would have likely resulted in a termination of child support retroactive to October 28, 2005, this court refuses to find that defendant's failure to pay child support after November 17, 2005, was wilful and deliberate disobedience of a prior court order. Thus plaintiff's motions for contempt #125 and # 137 are denied. In making this finding, the court also notes there is no claim that between the date of dissolution and the date when the child came to live with defendant, defendant had ever failed to timely pay his court-ordered child support.
Although the court has denied plaintiff's various motions for contempt for the failure of defendant to pay child support, as set forth below, the court will use its equitable powers to provide plaintiff with the relief to which she is entitled.
See Kronholm v. Kronholm, 23 Conn.App. 577, 579 (1990) (in a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order). Although plaintiff has not suffered as a result of defendant's failure to pay child support while Linda has been in his physical custody, she was, by court order, entitled to the payments from November 17, 2005 to the present. "In Connecticut, the general rule is that a court order must be followed until it has been modified or successfully challenged. Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998); Behrns v. Behrns, 80 Conn.App. 286, 289, 835 A.2d 68 (2003), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004)." Lawrence v. Lawrence, 92 Conn.App. 212, 215, 883 A.2d 1260 (2005).
B.
The final motion before the covirt is defendant's motion to modify child support (#122). In this motion defendant claims that the child has resided with him since October 2004, and requests that the court (1) modify its prior order requiring defendant to pay support to plaintiff and (2) enter an order of support against plaintiff.
On December 19, 2005, the court approved, and adopted as a court order, an agreement of the parties by which primary residence was transferred to defendant pending the outcome of a Family Services evaluation and a further hearing on defendant's motion to modify primary residence (#126) and plaintiff's motion to modify custody (#128).
In support of this request, defendant submitted his financial affidavit and a child support guidelines worksheet. Plaintiff did not submit a financial affidavit. Plaintiff, however, testified that from November 2004-May 2005, she was employed by Clear Channel and earned $45,000.00 per year. Plaintiff further testified that she has been voluntarily unemployed since May 2005; that she presently resides with David Nation in Ellington, Connecticut; and that he supports her needs.
Plaintiff's financial affidavit was marked as plaintiff's exhibit one for identification, but was never introduced as a full exhibit.
General Statute Section 46b-215b requires that the child support guidelines set out in Conn. State Regs. § 46b-215a-1 et seq. be considered by the court in all determinations of child support. Further there is a presumption that the amount of support as set out in the guidelines at each income level is the amount to be ordered. This presumption, however, is rebuttable if the court finds that a strict application of the guidelines would be inequitable or inappropriate.
In the present case strict adherence to the guidelines mandates a finding of no income for plaintiff and approximately $67,000.00 in gross income for defendant. Under this scenario, the combined net weekly income of the parties would be $973.00 and their basic child support obligation would be $225.00. Further, owing to plaintiff's lack of income, this entire basic support obligation would be attributable to defendant. By strict adherence to the guidelines, plaintiff, therefore, would be excused from contributing any sum toward the child's support.
There is no question that plaintiff is capable of working full-time, but has voluntarily removed herself from the workforce. There is also no question that plaintiff and defendant made the joint decision to bring their child into the world. As such they both have an obligation to contribute to her support. Further, it is, generally, not in a child's best interest to be deprived of financial support from one of her parents. The court finds, therefore, that in the present case strict adherence to the guidelines, which mandates that plaintiff provide no support, is not in her child's best interest. Conn. State Regs. § 46b-215a-3(b)(6).
Since plaintiff has no income, in order to determine the appropriate level of child support, the court will impute income to her based upon her earning capacity. At the hearing, plaintiff conceded that she had an earning capacity of $32,000.00 per year and had earned an effective salary of $45,000.00 per year during 2004-05. The court finds that plaintiff has a present earning capacity of a minimum of $40,000.00 per year in gross income. In calculating the amount of support in the present matter, therefore, the court will use a gross income of $40,000.00 for plaintiff and $67,080.00 for defendant. Allowing for permissible deductions, the parties' combined net weekly income is $1,570.00 and their basic child support obligation is $280.00. Of this $280.00, 38% or $106.00 is attributable to the plaintiff and 62% or $174.00 is attributable to the defendant. Defendant additionally requests that any support order entered by the court be made retroactive to October 28, 2005 — the date defendant filed his motion. For the reasons set out in this opinion, supra, this court lacks jurisdiction to enter a retroactive order. Gen. Stat. § 46b-86(a); Shedrick v. Shedrick, supra, 32 Conn.App. 147.
Accordingly, the court grants defendant's motion to modify child support (#122) and orders that the plaintiff pay $106.00 per week to defendant as support for the minor child. This order is effective September 8, 2006. As noted above, defendant owes a child support arrearage of $6,353.76. The court further orders that defendant's arrearage be paid by granting plaintiff a credit toward her weekly child support obligation. Such credit is to be taken at the rate of $106.00 per week for the next sixty (60) weeks.
III. CONCLUSION
For the foregoing reasons, plaintiff's motions for contempt (# 112, 119, 125, 127, 137) are denied; defendant's motion to modify (#122) is granted; and the court finds a child support arrearage owed by the defendant of $6,353.76.