Opinion
FA144019633
03-08-2016
Melissa Rivera v. Edwin Flores
Filed March 9, 2016
UNPUBLISHED OPINION
MEMORANDUM OF DECISION REGARDING PETITION FOR CHILD SUPPORT NUMBER 101
Richard G. Adams, Family Support Magistrate Referee.
This case was heard by this court on remand from the Superior Court, (Klatt, J.), pursuant to a decision dated April 1, 2015, overturning a decision of the Family Support Magistrate Court dated July 2, 2014, which had established child support orders and an arrearage in favor of the petitioner.
The appeal addressed a somewhat convoluted sequence of motions and proceedings, the details of which are recited in footnote 1 below, including two evidentiary hearings, one on default and one contested between pro se parties, with an assistant attorney general appearing for the state at both, during which portions of the evidence now before this court were received and some of the same arguments were heard.
Magistrate Sanchez-Figueroa concluded, in the decision of July 2, 2014, that Mr. Flores had earned income from the purchase and sale of used cars which were marketed on the internet. On April 1, 2015, Judge Klatt reversed the decision and vacated the orders, at least in part, because the evidence was found to be inadequate to support the magistrate's findings and conclusions. Other errors were also cited as additional grounds for reversal.
The July 2, 2014 decision followed the unopposed granting on May 7, 2014 of motion No. 106 to open a default judgment entered on April 2, 2014, awarding current support and arrearages based on unopposed exhibits and testimony of the petitioner. The original orders were reinstated in the July 2nd decision, following an evidentiary hearing in which the petitioner again introduced evidence and the respondent appeared pro se. On July 9, 2014, the respondent filed a motion to modify No. 113, well within 20 days for taking an appeal or to reargue, alleging, in effect, that the July 2nd decision was in error. Motion No. 113 was served on July 16, 2014 but on the defendant himself instead of the petitioner or the state. The papers were returned to court on July 21. On August 6, 2014, the parties appeared with the respondent represented by private counsel. Motion No. 113 was marked off for no service after the petitioner declined to waive defects in service and no request was made to reserve any issues raised by Motion No. 113, to amend the return, or by other means to preserve the vitality of Motion No. 113 to claim a timely appeal or re-argument. On September 3, 2014, the parties appeared on Motion No. 116 citing the respondent for contempt of the July 2 order, the petitioner pro se and the respondent with his attorney. The contempt was continued to September 24, 2014, for a special hearing. On September 24, a second pro se motion, No. 117, appeared on the calendar for an initial hearing together with the pending contempt. Motion No. 117 was submitted in the form of a motion for modification but explained its purpose as a " Motion to Reargue" for reasons stated therein. Its text, which referred to " an order dated 07/02/2014" and sought re-argument, contained an X in the box claiming a change of circumstances but added a typewritten explanation that its purpose was to submit a " Motion to Reargue because I receive SSI & evidence was not accurate; I do not have the money to pay the support order" and requested a " Decrease in current support." The clerk's office denominated it as Motion No. 117.10. The court treated it as a motion to reargue. No party at any time objected to or protested treating it as a motion for re-argument despite the expiration of the time for requesting re-argument. A motion to modify would not have helped the respondent because he did not claim any change of circumstances since the ordered entered. Nevertheless it was docketed in accordance with the title of the form as a Motion to Modify. Both motions were continued to November 12, 2014 to be heard by Magistrate Sanchez-Figueroa, whose decision was to be the subject of Motion No. 117, and to secure the attendance of a Spanish interpreter for the respondent. On September 27, 2014, the respondent's attorney filed Motion No. 118 to open the judgment of July 2, 2014, to be heard on November 12, 2014 with the other two pending motions. Meanwhile, No. 117 was forwarded to Magistrate Sanchez-Figueroa but No. 118 did not follow it. On October 24, 2014, Magistrate Sanchez-Figueroa denied Motion No. 117 in chambers. On November 12, 2014, the parties appeared before Magistrate Adams on the remaining motions, for contempt No. 116 and to open No. 118 and throughout the hearing debated No. 117 as a motion to reargue the July decision without objection to its untimeliness. The respondent did not claim the right to proceed on a motion to modify but argued instead for more opportunity to be heard on the Motion for Re-argument. Magistrate Sanchez-Figueroa was not available to hear the motion to open her orders. Following lengthy argument, the court referred all pending matters to Magistrate Sanchez-Figueroa and, by orders of November 12 and November 17, 2014 a hearing was set before Magistrate Sanchez-Figueroa in Hartford at 2:00 p.m. to hear Motion No. 118 to open the judgment of July 2, at which time the motion to open was denied and the appeal followed.
The remand hearing was held on May 27 and September 2, 2015, occupying the afternoon of both dates. A more extensive record was developed with the state represented by an Assistant Attorney General aligned with the petitioner and the respondent represented by his private counsel. Four witnesses testified, including both parties. All were thoroughly cross examined. Fourteen documents and 32 photographs were admitted into evidence. After the hearings concluded, both parties filed briefs the last of which was filed on November 12, 2015, thereby closing the record.
CONFLICTING TESTIMONY: IS RESPONDENT ENGAGED IN A REMUNERATIVE BUSINESS?
The issue before the court is whether the respondent, father, Edwin Flores, aka " Flako, " who receives long-standing social security benefits based on mental retardation, has an actual income, in addition to those benefits, which supports an order to pay child support and an arrearage for past non-support for the two named minor children of these parties.
This is one of three petitions for child support initiated by the Attorney General's office pending in this court against the respondent. The issues have been actively contested between the parties in Rivera but the defendant's income presents identical issues in Catherine Perez v. Edwin Flores, docket number NNI FA14-4020813 and Jessica Velez v. Edwin Flores, docket number NNI FA 14-4021048. The parties in the companion cases are before the court with the Rivera case, the petitioners have had the opportunity to participate and the court's findings and conclusions regarding the respondent's income are binding in the companion cases.
POSITIONS OF THE PARTIES
The parties agreed at the outset of the remand hearing that the purpose of the hearing is to establish the respondent's current ability to pay child support based on actual earnings, not on imputed earnings or earning capacity.
Transcript May 27, 2015, pp. 2-3.
In their post-hearing briefs, both parties, ably and at length, describe facts which are selected, emphasized and interpreted consistent with their positions.
The petitioner, speaking frequently through the attorney general's office, argues that the evidence demonstrates that the respondent has for ten years or more been continuously in the business of acquiring used cars at auction and on line and reselling them on his internet web page and by word of mouth, sometimes after replacing damaged parts, painting, or making repairs, which improvements are performed at a rented garage where he maintains a place of business under his own name. The state contends that the testimony of the respondent and his witness, under whose dealer license Mr. Flores purchased vehicles, is untruthful and not credible. The state relies upon the testimony of the petitioner, who lived with the respondent for several years and who claims firsthand knowledge of his business practices, and the testimonial and documentary evidence offered by the comptroller of the auction house through which vehicles were purchased.
The respondent denies that he has business income. He argues, first, that he and Mr. Roman should be believed in testifying that, although Mr. Flores did purchase cars at auction over a period of years and advertise them for sale on his Face Book page, he did not do so for his own benefit but only as a favor to Mr. Roman, using cash given to him for that purpose by Mr. Roman and receiving nothing in return but gasoline and lunch money. Mr. Flores also denies making repairs to the vehicles or having the skill to do so. In any event, the respondent impliedly argues, he cannot be proven to have business income now given Mr. Roman's unsolicited testimony at the last hearing session that he will no longer allow Mr. Flores (aka Flako) to do such favors for him in light of all the trouble it has caused in this case.
Transcript September 2, 2015 p 92.
STATUTORY AUTHORITY
Under the Connecticut Child Support and Arrearage Guidelines § 46b-215a-1(11)(B)(ii), Supplemental Security Income (SSI) payments, such as those received here by the respondent, are excluded from gross income in calculating child support. The respondent here claims in his sworn affidavit that he has no other income. With an alleged zero gross income, the presumptive current support amount indicated by any guidelines worksheet would be zero, which is the respondent's proposed result. In some cases, under the guidelines, courts may deviate from the guideline results under circumstances specified in § 46b-215a-5c (Deviation Criteria) including " financial resources that are not included in the definition of net income . . . [which] could be used by such parent for the benefit of the child . . ." including " (B) the parent's earning capacity . . ."
However, deviation to earning capacity is precluded in this case because General Statutes § 46b-215b(b) provides that:
(b) In any determination pursuant to subsection (a) of this section [child support and arrearage orders under the guidelines], when a party has been determined by the Social Security Administration, or a state agency authorized to award disability benefits, to qualify for disability benefits under the federal Supplemental Security Income Program, the Social Security disability program, the state supplement to the federal Supplemental Security Income Program, or the state administered general assistance program, parental earning capacity shall not be the basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income . (Emphasis added.)
Therefore, the SSI is not considered income and its presence precludes relying upon a determination of " earning capacity" as a basis for establishing a child support order and, therefore, also precludes resorting to the common practice of deviating in the absence of earnings records to earning capacity at minimum wage rates.
According to the Connecticut Child Support and Arrearage Guidelines, the court is required to determine a party's income from all sources. The definition of gross income in the child support guidelines includes " self-employment earnings, after deduction of all reasonable and necessary business expenses." Child Support and Arrearage Guidelines, effective July 1, 2015, Section 46b-215a-1, Definitions (11)(A)(xviii). The petitioner and the attorney general, however, contend that Mr. Flores' gross income is not in fact zero because he is engaged in the business of buying, repairing and selling used cars. Such income can be the basis for a child support order under Section 46b-215b(b).
CREDIBILITY OF THE CONFLICTING TESTIMONY
Having listened to all of the witnesses and their cross examination, having had the opportunity to put questions to them to test and clarify their testimony and having observed their demeanor, this court can say, with a high degree of certainly and confidence, that material assertions in the testimony of both the respondent, Mr. Flores, and his star witness, Mr. Roman, are knowingly false. On the other hand, and despite minor inconsistencies and a minor retracted transgression, the petitioner's testimony is fundamentally consistent, plausible, truthful and accurate. The testimony of Bonnie Cairo is generally consistent with either party's theory and supplies concrete financial information which assisted the court in arriving at a reasonable estimate of the respondent's business income.
At the first hearing session the petitioner offered documentation of auction purchases by Mr. Flores. On voir dire she admitted that the documents were supplied by a friend who worked at the auction who may have taken them without authorization. The documents were inadmissible because they lacked authentication and were withdrawn. The petitioner's claim was established by other means at the second session through Ms. Cairo's testimony and exhibits, corroborating the petitioner's testimony.
Edwin Flores and Alfredo Roman
This court concludes that the interpretation of the evidence propounded by Mr. Flores and supported by Mr. Roman is transparently and obviously implausible. Their insistence that the respondent, since 2005, has regularly, weekly, attended automobile auctions at which he placed cash bids, made cash payments for, and accepted delivery of, hundreds of cars, and advertised them for resale on the internet on his Face Book page and under his own name, purely as a personal favor to a friend of seven years, Alfredo Roman (whose last name he professed, nevertheless, to be unable to recall at the July 2, 2014 hearing, which his attorney later cited as evidence of his allegedly impaired ability) in return for lunch and gasoline money, is a thinly disguised attempt to conceal Mr. Flores' income from those transactions. Having observed the manner in which both men testified to these specious claims and their sometimes evasive choice of words, the court concludes without doubt that they were both fully conscious of the inaccuracy of their testimony.
Their explanations became more convoluted and increasingly implausible as they attempted to parry questions on cross examination and from the court. Mr. Flores does not deny facts which establish his control over the disposition of at least some of the vehicles he purchased and temporarily loaned or eventually resold to the petitioner, relatives, and girlfriends. At the same time he claims to be purely a straw man for Mr. Roman. Even as to those transactions, he offered no accounting of the markups or income derived from them. But that he did buy and sell those vehicles, a fact ignored in the respondent's arguments, is not denied, thereby effectively revealing that Mr. Flores did have at least some business income in the past and that his blanket denials of ever having done so and lacking the ability to do so are false.
The court also finds that, regardless of the respondent's qualification for Supplemental Security Income (SSI), over which this court claims no authority and on which it expresses no opinion, he clearly possesses the mental and physical capacity to engage in the business activities alleged by the petitioner and the attorney general, as he has amply demonstrated before this court. Even the respondent's medical evidence asserts only that he suffers from " mild mental retardation, depression, and high blood pressure." The respondent's medical report does not conflict with the evidence of his ability to conduct his business. (Defendant's Exhibit C. Transcript September 2, 2015 pp. 71-72.) He appears to have adapted very well to his circumstances.
The history of Mr. Flores' participation in these proceedings since early 2014 suggests a reasonably sophisticated grasp of the process. Mr. Flores chose not to appear at the initial hearing on April 2, 2014, when the petitioner made a presentation which persuaded this court to grant an order based on actual earnings. Upon learning the result, Mr. Flores promptly filed a motion to open the judgment which was granted without objection by the petitioner or the state on May 7, 2014 when the respondent appeared pro se. On July 2, 2014 a new hearing was held on the support petition at which the petitioner again offered, over the respondent's objections, evidence of earnings by the respondent. When the outcome went against him a second time he promptly filed a motion to modify and hired an attorney to represent him at its hearing on August 6, at which his counsel marked the motion to modify off because it had not been served on the petitioner. Thereafter, on September 3, 2014, a contempt motion against Mr. Flores was scheduled and continued to September 24 for a special hearing by which date Mr. Flores had filed pro se a motion to reargue the July 2 decision, albeit on the form for a motion to modify, which his attorney thereafter pressed as a motion for re-argument, together with her motion to open.
While that process was not without typical laymen's errors, the respondent's gradual emergence from a non-appearing defendant on SSI to a vigorously represented litigant seeking re-argument to open judgment and an appeal suggests a pretty good understanding of the process and an ability to pursue his remedies. While his actions do not prove that he attempted to use his SSI status to evade accountability for his business activities, they do corroborate the petitioner's testimony that Mr. Flores is not mentally disabled or naive.
The record also reveals substantial motivation for the respondent's measures to avoid juridical risk at past hearings and his stone walling testimony here. Ms. Rivera's two children were Mr. Flores' third and fifth, born in 2007 and 2009. According to the petitioner, when the parties met she did not know he was married, as she learned later. As of trial, she believed he had 10 or 11 children. He admits to ten. During the period when she was bedridden with a difficult pregnancy for one of their children, Mr. Flores was the sole support of the entire household, providing a level of support which exceeded his social security benefits. Once she returned to work, he continued to support the entire household and his child for six or seven months before reducing his support. As of the date of trial, Mr. Flores confirmed that he has, since the birth of Jeremih, sired five additional children with several additional mothers. Two of those five are subjects of the two companion cases. Therefore, the record reveals that at least four of the ten children are potential beneficiaries of child support which the Attorney General is currently seeking on their behalf from Mr. Flores. There are also two children of a marriage during the dissolution of which in 2013 the parties stipulated that he was " exempt" from paying child support because of SSI. It is entirely possible that the mother in that case (see discussion of Gil v. Flores below) or the state might move to open the judgment should it appear that it was procured by misrepresentation or fraud.
He was then married to Elizabeth Gil and so remained until February 4, 2013, that is, the entire time he lived with Ms. Rivera. Ms. Gil bore him a second child on March 8, 2007, while Ms. Rivera was pregnant with Janelis. He also had a fourth child, with yet another mother, who is not identified in this record, on June 4, 2007, which child was apparently conceived while he was living with the petitioner and was born while the petitioner was pregnant with Jeremih. Mr. Flores initially testified that he is living with the mother of one of the other six children. However, later in the same testimony he admitted that they live in separate apartments, not together. Transcript September 2, 2015, pp. 69 and 86.
If Mr. Flores is found to have a business income he becomes responsible to contribute support to all ten with immediate orders for at least the four who are now before the court. As long as he can rely upon his social security status to establish inability to pay and conceals his business income, at least from the court and the state, if not from the mothers, he has the power to decide who he will support and to what extent, as the petitioner testified he did when her children were younger, and, therefore, also to decide which mother or mothers to favor when he is satisfied with their relationship with him. By being able to defy successfully the state's effort to secure support based on his business income, despite the openly advertised and substantial commerce indicated by the petitioner's testimony and the exhibits in evidence, he demonstrates to the mothers his power to control their circumstances. Such a strong motivation, while not by itself proving his ability to pay, is relevant to evaluating the credibility of his contested claims to helplessness and poverty.
Moreover, to be believed, the respondent's positions would require the court to conclude that the petitioner has perjured herself at length in her detailed testimony about Mr. Flores' long business history and steady substantial income over the three or more years they lived together, when he was supporting his young family at a level well beyond his social security income. This court declines to do so and credits her testimony.
The respondent cites in his defense that two of his children were subjects of a divorce proceeding in this court in the case of Edwin Flores v. Elizabeth Gil, docket number NNI-FA12-4017214, in which the family court found on February 4, 2013 that Mr. Flores' " income is exempt under the guidelines" and, in the further words of the decision overturning the prior order in this case, " was exempt from any order to pay child support due to the fact that he was on SSI." (Court's Orders of April 1, 2015, page 9.) It is not clear how much reliance the respondent places on this fact. He has not expressly claimed that this court is foreclosed from arriving at a different conclusion here or that the decision is res judicata between these parties or on the issues here. The petitioner here is a different party and, therefore, is not bound by the results of the respondent's litigation with another mother. Inconsistent outcomes are possible depending upon the evidence offered and the relationship of the parties. Review of the official recording of the hearing and the judgment file indicates that the court's order implemented a written agreement of the parties, with an assistant attorney general present and participating, stipulating that the father was " exempt" from paying child support " due to SSI." No issues were contested or adjudicated. The respondent has offered nothing to establish that Ms. Gil knew about the evidence offered here, or that the interests of the parties in that case were even adverse. This court concludes that the court's orders in the Gil case provide no guidance to, or are at all binding on, this court.
" 'Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits . . . [I]ssue preclusion . . . prevents a party from relitigating an issue that has been determined in a prior suit.' (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 554, 848 A.2d 352 (2004). 'The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation.' (Internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn.App. 715, 723, 716 A.2d 922 (1998). '[T]he doctrine of . . . claim preclusion . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it.' (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 191, 680 A.2d 1243 (1996)." Bruno v. Geller, 136 Conn.App. 707, 720-21, 46 A.3d 974, 985 (2012).
Melissa Rivera
The petitioner's testimony, which the court credits, establishes that Ms. Rivera and Mr. Flores met in 2005 and lived together for nearly four years from 2006 to 2009. Two children were born to them during that time: Janelis on July 5, 2007 and Jeremih on November 9, 2009. The petitioner had a difficult pregnancy with the first child and was unable to work before and after her birth. During that time and, thereafter, throughout the time the parties were together, the respondent provided the sole support for the four of them at a cost she estimated at $1,200 per month, even though he received social security benefits of only $700 per month. He also paid half of the $3,500 to $4,000 cost of a trip to Puerto Rico with her. He was able to do so because the respondent was continuously and actively engaged in the business of acquiring, repairing, and reselling used motor vehicles. The petitioner actively assisted him in his business by helping him purchase vehicles on Craig's List, interpreting for him with non-Spanish speaking customers, setting up his online website where she listed vehicles for sale as he directed, including photographs, and accompanying him to pick up and deliver vehicles in various towns. He acquired vehicles from and sold them to private parties, which he could do without a dealer's license, and bought cars at auction, which required a dealer's license.
The child's name is not misspelled and is pronounced without the fourth syllable a reader might have expected.
Because Mr. Flores is not a dealer he paid from $50 to $100 per car for the use of a dealer's license. The respondent maintained a garage in a storage unit on Colony Street in Meriden, near his mother's house, where he worked daily, often until 9:00 p.m. His nickname, Flako, and his cell phone number were listed on the premises where she believes they remained at the time of trial. There he repaired cars for resale including replacing bumpers, removing dents, sanding down scratches, and repainting as necessary for resale, skills he had learned while living in Puerto Rico. The petitioner saw him working at his garage during the summer of 2015. He stored some vehicles on his mother's lawn adjacent to Colony Street, some in his storage unit and some in another unit owned by an unidentified person. State's exhibit H shows a group of such vehicles displayed for sale on Mr. Flores' web site.
Transcript May 27, 2016, pp. 5, 6 and 8.
Selling was a continuous process as long as the petitioner has known him. She was given the use of one of the respondent's cars most of the time, each of which was replaced every five or six months as it was sold. He accumulated no unsold inventory. From 2005 to 2007, she estimated she did 20 to 30 ads for him and that he was selling two to three cars per month. As of April 2, 2014, she testified he was listing approximately 80 vehicles for sale on his website. She produced printouts of photographs from his website for only those 30 which she thought displayed sufficient information to determine the asking price of which 26 display asking prices which the interpreter was able to translate for the court. (State's Exhibits B through Y and AA through AF.)
The court also credits Ms. Rivera's testimony that, during all the dates in question, she observed no impairment of the respondent's mental or physical abilities, nor did he ever claim any to her. Furthermore, he told her that he received SSI benefits for a hip injury incurred in military service. Only later did she hear that the benefits were based on mental retardation. Moreover, she observed that he prominently wore gold jewelry and exhibited a comfortable lifestyle and an active social life which included the continuous use of nice looking, higher end automobiles in good condition. (See also State's Exhibit A.)
Bonnie Cairo
The testimony of Bonnie Cairo, comptroller of Statewide Auto Auction, and the exhibits introduced through her, document the process of bidding for and purchasing vehicles at the Meriden auction. They also identify 108 specific vehicles purchased by Mr. Flores from December 27, 2013 to July 16, 2015, according to the records of the current owner, Tom Balaise, who acquired the business in November 2013. They also reveal that Mr. Flores is one of ten people who are of record as authorized to buy cars under the dealer license of Mr. Roman's company, Yeri Auto Sales. Mr. Flores has not challenged any of Ms. Cairo's testimony or exhibits. The court credits her testimony and finds the exhibits to be authoritative as to their contents.
Summary of Findings and Conclusions Regarding a Basis to Calculate Current Business Earnings
So it is established that the father/respondent, Edwin Flores, is engaged in a commercial business consisting of purchasing used automobiles from various sources, primarily used car dealer auctions in Connecticut but also including individual transactions and Craig's List. He has been engaged in this business continuously for at least nine or ten years. He sells vehicles by word of mouth, personal contact and extensive advertising by way of his internet website under the name of " Flako." Since at least 2011, Mr. Flores has acquired vehicles at weekly auctions on the Berlin Turnpike in Meriden, Connecticut, currently being operated as Statewide Auto Auction, which is open only to used car dealers. Although Mr. Flores is not a licensed used car dealer himself, he is able to purchase vehicles by acting as a designated representative of a licensed dealer for which status he pays a licensed dealer. Most of the transactions described to the court were conducted under the dealership license of a New Jersey company called Yeri Auto Sales which is owned by the respondent's witness, Alfredo Roman.
Mr. Flores is one of at least ten individuals who are registered with the auction as representatives of Yeri Auto Sales, Inc., at the Statewide auction. Mr. Flores is there frequently, bids on used cars, pays for them with cash, obtains a bill of sale made out to him as the buyer and Yeri Auto Sales, Inc., as the dealership. The paperwork gives Mr. Flores ownership of the vehicles and the ability to register them in his own name or that of any other person, and to convey ownership to others by a bill of sale. Mr. Flores then removes the vehicles from the premises and stores them in various locations until they are sold, including but not limited to his garage on Colony Street in Meriden rented from Carabetta Garages, where he performs work on some of the vehicles to enhance their value such as replacing parts, light body work, removing dents, sanding, and painting. He also has allowed the petitioner and his present girlfriend to use cars until they are sold and has stored them on the lawn at his mother's home, awaiting sale.
Over a 19-month period from December 2013 to July 2015, Mr. Flores purchased at Statewide Auto Auction one hundred and eight (108) vehicles at a cost of $155,345, for which he paid in cash. During 2014, the only full calendar year for which his auction purchases are established in the record, he bought ninety-one (91) vehicles for a total of $140,570. For each vehicle he received a bill of sale listing his name as the purchaser and was free to drive the vehicles off the lot, which he did not deny.
Mr. Flores claims that the cash for the purchases came exclusively from Alfredo Roman, owner of Yeri Auto Sales, a New Jersey dealer licensed in Connecticut, that the vehicles belonged to Yeri and that Mr. Flores received no compensation except lunch and gas money. Mr. Flores claims that each purchase and its price was pursuant to specific instructions from Mr. Roman, whom the respondent says entrusted him with over $190,000 in 2014 for this purpose, all of which Mr. Flores did purely as a favor to Mr. Roman, with whom he has no other particular relationship. Mr. Roman airily testified that he sold the vehicles overseas, in Costa Rica, although no documentation of their export or transshipment was produced or even represented to be available. No continuance was sought to enrich the record. Mr. Roman testified that he arranged to have each vehicle purchased by Mr. Flores and taken to his home picked up by truck to be exported, but did not know where Mr. Flores lives. No explanation was offered for why vehicles Mr. Flores purchased at the Meriden auction would be displayed for sale in Meriden if they were destined to be delivered offshore, nor from what port they were shipped, nor why cars sent to Costa Rica were offered for sale on his behalf on Mr. Flores' Face Book page. The court considers it unlikely that there would be no records of the alleged export of 108 vehicles bought by the respondent but none was produced. Perhaps Mr. Roman claims to be a smuggler.
Under close cross examination and when confronted with documents, Mr. Roman reluctantly admitted to providing intentionally incomplete bills of sale which allowed buyers to enter their own odometer readings and title numbers. After at first claiming a mere oversight on the first title he was shown, he later claimed that his buyers requested that the documents be left incomplete and that the practice was necessary for him to be able to sell the vehicles, knowing that buyers would consequently supply false information in order to enhance the value or alter the identity of the vehicles for re-sale.
This court disbelieves much of the testimony of both Mr. Flores and Mr. Roman and does not credit their testimony on the issues in dispute.
ESTABLISHING IMPLIED BUSINESS INCOME
Having determined which version of the facts is more reliable, the task becomes determining how to estimate Mr. Flores' income.
The most satisfactory evidence would be records of his transactions, including purchases, sales, and expenses. Mr. Flores could have made at least a good faith effort to reconstruct when each of the vehicles bought at auction or advertised on line over a specified period of time was sold, at what price and cost, had he been willing to testify honestly. However, the respondent produced no records, claiming none exist or ever existed, and made no attempt to reconstruct them, not even the few sales he had effectively admitted. At this point, his credibility is so impaired that his own unverified oral testimony would carry little weight.
" It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness' testimony." (Internal quotation marks omitted.) Kiniry v. Kiniry, 299 Conn. 308, 329, 9 A.3d 708 (2010).
Mr. Flores cannot immunize himself from court findings that he has business income and is able to pay child support simply by denying it in the face of credible and compelling evidence to the contrary. The situation is closely analogous to that faced by Judge Alander in Parent v. Parent, Superior Court, judicial district of New Britain, Docket No. 94-022675 (October 1, 2011, Alander, J.), a marriage dissolution action in which the parties disagreed about the father's unreported annual cash income from self-employment, which the father claimed never exceeded $5,000 but the petitioner contended was $20,000 to $30,000. The father kept no invoices or business expense records. The court found the mother's testimony credible and the father's not credible, disbelieved his federal tax return and noted that the father's business deposits were almost twice the declared income and found a " minimum net business income" of $90,000, despite his reported business income of $68,176, and ordered child support of $363 per week. The court relied on Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991), and Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974), regarding the importance of full and frank disclosure of financial information in a family case and the seriousness of financial misrepresentation, adding:
Because the defendant has been deceptive in his disclosure of financial information and because the plaintiff has been unable to discover the precise extent of the defendant's net income due to the defendant's deliberate failure to maintain appropriate financial documentation, I am forced to approximate the defendant's net income from his business. Where a party's own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award. Rosenfeld v. Rosenfeld, 115 Conn.App. 570, 581, 974 A.2d 40 (2009).
See also Leveston v. Leveston, 182 Conn. 19, 24, 437 A.2d 819 (1980).
Here the respondent has not merely failed to keep proper records, he has produced and relied upon false testimony to deny the existence of a business that is plain to the eye of any reasonable person and, figuratively, to " throw dust in a juryman's eyes" by contriving a transparently false tale of working year after year, buying and selling hundreds of automobiles for lunch and gas money.
" When I Went to the Bar, " Iolanthe, Gilbert and Sullivan, 1882.
The court concludes that it can draw reasonable inferences of Mr. Flores's business income from the credible evidence, despite his denials. The court also concludes that it would be a miscarriage of justice to the petitioners, the children and the state to allow the respondent to profit from his own dishonesty and refusal to provide reliable information. Any uncertainty or range of error in the court's efforts to evaluate the respondent's current business income is traceable to his own conduct and could have been avoided by good faith production of credible information and documentation. Any loss he faces as a result is self-imposed.
Calculating the Respondent's Business Income
With all the evidence now as complete as it is going to be, and with its reliability and credibility resolved, the court faces the duty to determine the respondent's unreported income. Two approaches, similar in method but distinct in detail, emerge.
Comparable Sales
The state, in its brief, relies upon a search of the respondent's known auction purchases and his Facebook page offers to sell for instances of the same or closely similar vehicles appearing on both. For each actual or hypothetical transaction, the state then compares the known cost to the asking price, adjusts for possible additional costs and possible price negotiations, calculates an average net revenue per sale and multiplies by the number of sales the state contends the evidence indicates for 2014, the only year for which a full twelve months of auction purchases exists in the record. The state's approach is ideal, as long as it uses the most representative available information.
The unavoidable weakness of the state's approach is that only three hypothetical purchase and sale matches appear in the data. They are examined in detail below. The small number renders the sample susceptible to a wide range of outcomes depending on exactly which three vehicles happen to be involved. Of course, a larger sample would be preferable, which the respondent was in the best position to produce but which, the court has concluded, he has chosen to conceal or leave undiscovered. As it turns out, no transactions involving the purchase and sale of the same vehicle were found. Furthermore, all three identified Facebook offers pre-date their comparable auction purchases strongly implying that they involve different although similar vehicles. In one pair, the mileage data, assuming the Facebook mileage is accurate, establishes conclusively that they are indeed two different cars. But each pair is of the same year, make and model and there is no reason apparent to the court to think they are so different as to render their purchase and asking prices to be irrelevant or misleading.
The court concludes there is a better approach. The court compared the state's average cost conclusion from its three car sale sample with the average cost of all 108 auction purchases in evidence and all 91 purchases in 2014. The results, also detailed below, are very close. The court also compared the state's average estimated sale price of three transactions to the average adjusted asking prices of all 35 Facebook entries in evidence. The results are substantially different. The state's estimate is much higher than the actual average of the 26 asking prices in evidence. The difference is attributable to the overweight of a single high priced vehicle in the three car sample as against two much lower priced cars. In the sample of 26 known asking prices, the high priced car is a single outlier. No other asking price is anywhere near it. Therefore, that asking price has a disproportionate one-third impact on the estimated average markup.
In all other respects, both sets of information regarding purchase prices and asking prices seem quite comparable. The ages, makes and models of vehicles in both data sets are quite varied, each with a smaller number of higher end vehicles compared to the total, and fourteen model years clustered between ten and seventeen years old, plus a few newer and a few older models. While also less than perfect, given the limitations noted repeatedly above, the court is much more satisfied with the reliability of the results of comparing all of the available data to determine estimated average revenue per inferred sale in place of trying to rely upon a more particular but very small and less representative subset.
The court also declines to adopt the state's proposed estimated number of sales per year, month and week and, therefore, comes to a substantially different conclusion about the respondent's estimated business income, the reasons for which are explained in detail below. The respondent's argument and brief offer no help in analyzing the evidence in this respect. The respondent simply denies everything and ignores the import of the evidence.
The state uses three sales per calendar quarter to calculate the respondent's income, for which it provides no supporting analysis. The court can only speculate about an explanation. The court concludes that the evidence leads to minimum estimated sales equal to the number of 2014 auction purchases, that is, ninety-one, and calculates estimated income accordingly.
Neither the court nor the state attempts to account for private and online purchases in addition to the cars bought at auction or for private sales in addition to those advertised on Facebook.
The State's Formula
The state proposes a method of estimating the respondent's business income from the available information by searching the list of the ninety-one vehicles he purchased during 2014 for those which also appeared on his Facebook page in April 2014, to compare purchase and asking prices to deduce his net revenue.
Only three types of vehicles of the same year, make and model appear both among those he purchased from Statewide Auto Auction during 2014 and among the photographs of cars posted for sale on the respondent's Facebook page as of April 2, 2014. (See state's exhibit 2 and state's exhibits B-Y and AA-AF.) Although the state's brief does not acknowledge it, none of the three pairs of financial information appears to refer to the same vehicle, but to similar vehicles of the same year, make and model. All three auction purchases postdate April 2, 2014, when the state's exhibits of photographs of vehicles offered for sale on the respondent's web site were created and, therefore, could not have been advertised for sale by that date.
The three types of vehicles identified are: a 2008 Honda Civic (Exhibit E), one purchased at auction for $2,930, one offered for sale by the respondent on line for $9,800; a 1999 Subarn Forester (Exhibit K), one purchased at auction for $500 and one offered for sale on line for $2,395; and a 1998 Honda Civic (Exhibit O), one purchased at auction for $970, and one offered for sale on line for $1,800. The total of their purchase prices equals $4,400 so their average price is $1,466.67. The asking prices total $13,995, an average of $4,665 per car. The gross sales margin is, therefore, $4,665 minus $1,467 or $3,198 per vehicle.
The state acknowledges that some allowance should be made for costs, to which the guidelines refer, and for the possible negotiation of sale prices to less than the asking price, suggesting ten percent for each. The court finds both 10% adjustment, resulting in a 19% reduction in the average markup, to be reasonable. A ten percent adjustment increases the average cost from $1467 to $1614 per car and reduces the average asking price from $4,665 to $4,198. That yields a sales margin of $2,584 per vehicle instead of $3,198.
$1467 x 1.1 = $1613.70 or 1614.
$4665 x .9 = $4198.5.
The state's calculation yields $2,746.80 per vehicle as a result of mixing apples and oranges by subtracting the 10% adjusted cost from the unadjusted average asking price of $4,665 and discounting the resulting partially discounted average sales margin of $3,052, instead of discounting the full average asking price of $4,665, as the state's methodology purports to propose and the court finds more reasonable. In the court's opinion, a discount would be negotiated against the asking price, not the seller's proposed margin, which the buyer would not ordinarily be expected to know.
One would like a larger sample of specific or similar vehicles for which the purchase and resale asking prices could be compared but no one has suggested how such a sample can be gleaned from the known sales without the respondent's cooperation. The petitioner's photographs portray only the vehicles publicly for sale as of a single date. Some of the vehicles bought at auction were presumably sold prior to April 2, 2014, while others were no doubt sold after that date. The petitioner would have had to keep a frequent, perhaps daily, account of the respondent's Facebook page throughout the year to discover all the transactions from the auction purchases which appeared on line during 2014. The court deems that an unreasonable burden to impose on the petitioner. If the respondent believed the Facebook sales in evidence to be adversely unrepresentative, he had access to the information which could place the court's conclusions on a firmer foundation, even without having to admit that he profited from the sales in question. He has shown no inclination to enrich the sample or demonstrate in his brief how it leads to error.
The three sales extend across a range of vehicle ages and prices: asking prices of $9,800, $2,395 and $1,800 over auction prices of $2,930, $500 and $970 respectively, with proposed markups to 335%, 480% and 185% of the auction prices, i.e., markups of 235%, 380% and 85% above cost. When asking prices and costs are adjusted by 10%, the average of the three indicates a markup to an adjusted price of 260% of adjusted average cost or 160% above adjusted average cost.
State's average cost x 1.1 = $1,614 adjusted average cost; State's average asking price of $4,665 x .9 $4,198 adjusted average asking price; adjusted average asking price of $4,198/adjusted average cost of $1,614 = 260% of adjusted average cost and 160% above adjusted average cost.
Note: that is not an average of the markups, which would be 333%. It is an average based on the costs and prices of the vehicles which appears to be weighted downward in that there are two less expensive vehicles and one higher priced car in that average. But see below where the court concludes that the Honda Civic carries disproportionate weight in the sample.
The 108 purchases over the period of 2013-2015, at a total cost of $155,345, reveal an overall average purchase price of $1,438, a little less than the $1,467 average cost of the three cars in the sample. The 91 purchases in 2014 cost $140,570 or an average of $1,545 per car, a little above the three car sample. Therefore, the state's sample, while small, yields an average cost which appears on its face to be conservative and reasonable.
There are not enough sales in 2013 (1) or 2015 (16) to yield meaningful averages. Those fractional years would, therefore, be unreasonably adverse to the respondent by exaggerating the likely markups.
However, the 26 asking prices in evidence as of April 4, 2014 average only $3,005 per car, compared to the average of $4,665 per car in the state's three car sample. Performing the same calculations suggested by the state, comparing average cost to average asking price and adjusting ten percent up for costs and down for asking prices, yields a margin of $1,091 per car ($78,120.26) after subtracting $1,614 (the adjusted asking price of $1,467 x 1.1) from $2,705 ($3,005 x .9) yielding an average markup of 68% versus 160% in the state's sample.
The state's approach implicitly assumes that the three vehicles on the Facebook page are reasonably similar to those of like description in the auction sales records. But, the highest asking price of $9,800 is for a 2008 Honda Civic with purportedly much lower mileage (104, 000) than the mileage on the 2008 Honda Civic Mr. Flores purchased at auction in 2014 (245, 703). Therefore, Mr. Flores would reasonably expect less for the higher mileage vehicle he purchased at the auction in 2014 than for the lower mileage car of the same description he offered to sell for $9,800 on April 2. If so, then the implied markup between cost and asking price would probably be less than the calculation indicates, thereby rendering the state's estimate of net sale price less instructive.
State's Exhibits E, 11/20/14, 2008 Honda Civic, 104, 000 miles, Exhibit 4 page numbered 2, 8111 line from bottom and Exhibit 2 p. 18, 2008 Honda Civic, 245, 703 miles.
The court concludes that the foregoing comparison reveals that the single $9,800 asking price for the Honda Civic assumes a disproportionate weight in the state's calculations as one of only three hypothetical transactions, when averaged with the other two asking prices of $2,395 and $1,800. Among the 26 asking prices in the on line listing, $9,800 is a single outlier, the next highest asking price being $5,295 followed by 24 lower prices from $5,000 to $1,500. The court concludes the $9,800 asking price appears to overstate the likely markup on the auction price.
Number of Sales
The attorney general contends in the state's brief that, " The evidence clearly shows that the Respondent sells at a minimum, three cars per quarter from vehicles he himself purchased from Statewide Auto Auction." On that basis, at $2,585 per car, Mr. Flores' annual income would be $31,020 and his weekly income would be $597.
The state uses $2,746.80 per car as discussed above in footnote 16 yielding annual income of $32,961.60 and $633.88 per week.
The use of one sale per month seems without foundation in the record. This court is unable to identify a basis for the dramatically conservative estimate of sales volume suggested by the state, or any argument to support it. It is, of course, logically correct that, " the Respondent sells at a minimum, three cars per quarter, " inasmuch as there is evidence of far more than that number. But there is no plausible basis for this court to infer that the respondent's sales are only three per quarter instead of a number grounded in the number of his known purchases.
How do ninety-one purchases over twelve months translate into one sale per month? The state does not explain. It is true that the petitioner testified at the July 2, 2014 hearing to estimates of three or four sales per month and at least 20 per year. But her testimony related to the period from 2003 to 2009, when the parties lived together, which is prior to 2011 when Mr. Flores and Mr. Roman claim to have formed their purportedly asymmetrical relationship in car auction purchases. The evidence of sales since their allegedly eleemosynary partnership was born indicates a much larger volume than when Mr. Flores was working on his own, albeit apparently quite successfully even then.
Of course, there could be other factors or circumstances which would support a smaller sales volume, but there is no evidence of any. Mr. Flores simply denies it all, as to which he is not credible. If there were a credible basis to allocate some of his purchases to the sales of other parties or by other means, it has not been demonstrated. No analysis or explanation is offered.
The court has no basis on which to choose a number between zero and 91. Zero is not credible. There is clear and convincing evidence that Mr. Flores purchased 91 cars at auction in 2014, which he does not deny, and that he offered 40 to 80 cars for sale on his website at any one time continuously throughout 2015. That leaves 91 sales as the only reasonable conclusion which finds support in the record.
The evidence indicates that he made 108 purchases over 19 months, which suggest 5.68 sales per month, and 91 purchases in 12 months, which suggests 7.58 per month, approximately six to eight potential sales per month. There is no obvious reason why the number would increase or decrease from 2014 or 2015 to the present, unless intentionally and temporarily reduced in light of the pendency of' this litigation. There is no evidence or even claim that Mr. Flores is burdened with accumulated inventory and Ms. Rivera testified to the contrary and that vehicles turned over at least every few months. It seems reasonable to infer for these purposes that he eventually sells everything he buys. Of course, not all of the same purchases made in 2014 would have been sold in 2014. Some sales in 2014 would be from purchases in a prior year, but an offsetting number of vehicles purchased in 2014 would logically also carry over to the next year. Therefore, the most reasonable and best documented approach would be to infer that the number of sales in 2014 is the same as the number of purchases during that same year.
The state's apparent desire or willingness to be extremely conservative may be understandable, perhaps in the hope that the court will find it easier to decide the matter in the state's favor. But the court must follow the evidence to where it leads. The evidence is either sufficient to find a business income for the respondent or it is not. There is no basis for using twelve sales per year against objective evidence of 91.
" The inference to be drawn must be one which in common experience leads naturally and logically to the fact inferred or presumed. In the mind of the trier, the proof of one must produce the belief that it is more probable than not that the other, the ultimate fact, is thereby established. But where the inference is so strained as not to have such a reasonable relation, it cannot be drawn. Ducharme v. Putnam, 161 Conn. 135, 141, 285 A.2d 318 [(1971)]; International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 542, 102 A.2d 366 [(1953)]. Inferences, however, should not be founded on facts merely surmised. State v. Englehart, 158 Conn. 117, 121, 256 A.2d 231 [(1969)]. This is especially so where inferences are utilized to overcome direct and positive testimony . . . National Labor Relations Board v. P.R. Mallory & Co., 237 F.2d 437, 444 (7th Cir.). The test is whether the evidence removes the conclusion from an area of speculation, and is not only logical and reasonable, but strong enough so that it can be found that it is more probable than not that the fact to be inferred is true. Ducharme v. Putnam, supra; Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 [(1958)]." (Footnote omitted.) Reliance Ins. Co. v. Comm'n on Human Rights & Opportunities, 172 Conn. 485, 489-90, 374 A.2d 1104 (1977).
The Court's Conclusions: Identifying Average Asking Price and Calculating Business Income
Had the court adopted the state's calculation of $2,585 per car as the respondent's net revenue and applied it to 91 sales per year, the result would be an annual income of $235,235 and $4,524 per week. However, for all the reasons explained above, the court has concluded that state's reliance on the three sales they used, while plausible, is not the best analysis available.
This court concludes that a comparison of the $1,545 average price of all known purchases in 2014 to the average asking price of $3,005 for all 26 known asking prices is fairer, more reasonable and more representative of the respondent's likely sales margins. Adjusting average cost up 10% to $1,700 and average asking price down 10% to $2,710 yields an average markup of $1,005 per car.
The court, therefore, finds the most reasonable estimate of the respondent's sales margin per vehicle available for the purpose of calculating the respondent's business income to be $1,005. That amount multiplied by 91 equals $91,455 per year and $1,759 per week which the court finds to be the respondent's current business income.
The court has considered and rejects the possible argument that the petitioner is bound by the state's " admission" of a lower income than the court finds the evidence indicates. The state represents its own interest, separate and apart from the petitioner's, in avoiding the need for public assistance to the respondent's children and performing its duty to establish the respondent's legal responsibility to provide support. But the petitioner has a broader and even deeper interest in seeking child support for the benefit of her children commensurate with the respondent's real ability to pay based on his real income. While their interests are parallel or congruent through much of these proceedings, to such an extent that observers are sometimes tempted incorrectly to view the AAG as the petitioner's attorney, their interests at this point diverge. An award the state may deem sufficient to protect its interest against burdening the public purse may not be in the best interests of the children or sufficient to achieve for their children a lifestyle consistent with that which they would have enjoyed were the parents living together in a two parent home, which the guidelines set as their objective.
" The Connecticut Child Support Guidelines are based on the Income Shares Model. The Income Shares Model presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together. Underlying the income shares model, therefore, is the policy that the parents should bear any additional expenses resulting from the maintenance of two separate households instead of one, since it is not the child's decision that the parents divorce, separate, or otherwise live separately . . . Based on this economic evidence, adjusted for Connecticut's relatively high income distribution (as explained later in this preamble), the guidelines allow for the calculation of current support based on each parent's share of the amount estimated to be spent on a child if the parents and child live in an intact household. The amount calculated for the custodial parent is retained by the custodial parent and presumed spent on the child. The amount calculated for the noncustodial parent establishes the level of current support to be ordered by the court. These two amounts together constitute the current support obligation of both parents for the support of the child. Intact households are used for the estimates because the guidelines aim to provide children the same support they would receive if the parents lived together. More than this, however, support amounts would be set unduly low if based on spending patterns of single-parent families, as they generally experience a high incidence of poverty and lower incomes than intact families." Child Support and Arrearage Guidelines (2015), preamble, § (d), p. v-vi.
ORDERS
The court finds that the respondent has an actual current income from self-employment of $1,759 per week which he does not report and on which he pays no taxes. His social security disability benefits of $169.15 per week or $720 per month are not considered income under the child support guidelines. His net income for purposes of the child support guidelines is, therefore, $1,759 per week.
The math is not precise but these are the numbers reported on his several affidavits.
The respondent claimed that the prior court erred in failing to give the respondent credit on line 12 of the worksheet for one qualified child. The appeal did not specifically address the issue. No evidence of the parentage of a qualified child has been introduced. Nor has the respondent submitted a set of guideline calculations which omission, however, seems a meaningless technicality given his position that he has no income for these purposes and, therefore, there should be no child support order. None among the SES, the petitioner, and the state has filed a new guideline, no doubt because they are expecting the court to decide whether there are earnings, leaving it to the court to do any consequently necessary guidelines. There was no discussion by the petitioner or the state at any of the hearings regarding a qualified child but there was testimony about the respondent's claim to live with the mother of one of the children in which he admitted that they lived in separate apartments. The court finds that the respondent is not entitled to credit for a qualified child. Therefore, his net weekly income for guideline purposes remains $1,729 per week.
The petitioner's income as of her most recent affidavit on file for 40 hours per week is $614 per week gross and $550 net. Her income has not been in dispute. Support Enforcement's guideline calculations, using the same gross, yield a weekly net for child support purposes of $479 which the court finds to be her correct net income for these purposes.
Current support for the two minor children is hereby ordered in the presumptive current support amount under the guidelines of $415 per week. In addition, each parent is responsible to provide medical, dental, health and orthodontic care insurance for the minor children whenever it is available at a reasonable cost of not more than 7.5% of either party's net income. The respondent is also responsible to reimburse the petitioner for 50% of any out of pocket unreimbursed medical, health, drug, dental or orthodontic expenses she incurs for the children or either of them and 60% of any out of pocket unreimbursed expense she incurs for day care for the children in order for her to maintain employment.
See Guideline worksheet prepared by the court in the file.
The court has the authority to award an arrearage for unpaid child support for a three-year period prior to the date on which the petition was served on the respondent on January 13, 2014. Therefore, as of March 8, 2016, an arrearage is claimed for the 266 weeks which have elapsed since January 13, 2011. Based on the evidence already in the record, the court finds that the respondent has been operating under the same business arrangements, involving regular access to the Meriden Auto Auction, since at least 2011 and in the automobile resale business since at least 2008 and probably longer. The only full calendar year of auction purchases in evidence is 2014. The respondent has offered no evidence that his income was lower than his present ability at any time between January 13, 2011 and the date of this order. Inasmuch as he denies having any income during that period except social security benefits and reimbursement for gas money to the actions and lunch money while there, he has no apparent basis to contend for a lower income during the arrearage period than the evidence implies he has now. There is no reason to infer a lower ability from the facts in evidence. He had developed the necessary skills and had access to the same sources of supply and the same markets throughout the five-year period in question. According to his own testimony, he sired at least seven more children since 2008. The court infers and finds that Mr. Flores had the same ability to pay during that five year period as he has today. Furthermore, he has provided no evidence of having paid any child support to the petitioner during that period. The implication of his testimony is that he paid nothing to anyone. The court finds that Mr. Flores owes an arrearage for non-support for 266 weeks multiplied by $415 per week or $110,390, which shall be payable at the rate of $83 per week, for a total child support order of $498 per week, equal to 28% of the obligor's net income.
The two companion cases, Catherine Perez v. Edwin Flores, docket number NNI FA14-4020813, and Jessica Velez v. Edwin Flores, docket number NNI FA14-4021048, are hereby scheduled for April 1, 2016 at 11:30 A.M. in Courtroom 1-B in the Middletown Superior Courthouse for hearings to determine appropriate child support orders based on the respondent's net income of $1,759 per week and child support and arrearage guideline calculations to be prepared by the state.
These orders are effective the date of the filing of this decision, are to be secured by immediate income withholding, and are payable to the petitioner.