Opinion
HHD-FA19-6111059-S
08-22-2019
SALAZAR-ALMONTE, Candida v. PEGUERO-SOSA, Victor
UNPUBLISHED OPINION
OPINION
NIEVES (F.S.M.)
On May 6, 2019 a support petition was filed on behalf of the plaintiff mother, Candida Salazar-Almonte, seeking the establishment of current child support as well as retroactive support from the defendant father, Victor Peguero-Sosa, for the subject child, Isabella Peguero Salazar.
On June 4, 2019, this court held an initial hearing and found a duty to support with respect to both parties. Thus, a permanent current child support order was established. A continuance was requested and granted on the matter of arrearages. The court subsequently heard testimony on June 27, 2019 regarding the plaintiff’s request for arrearages.
Upon full review of the testimony and evidence, the court finds that the defendant father did not neglect or refuse to furnish support for the minor child, Isabella Peguero Salazar, for periods prior to the action. General Statutes § 46b-215 (a) (7) (A) provides that "[t]he court or family support magistrate may also determine, order and enforce payment of any support due because of neglect or refusal to furnish support for periods prior to the action. In the case of a child born out of wedlock whose parents have not intermarried, a parent’s liability for such support shall be limited to the three years next preceding the filing of a petition or written agreement to support pursuant to this section." Thus, while the court acknowledges that it may enter arrearages back to May 6, 2016, it must first make a determination that there was neglect and/or a refusal to support the child.
This statute falls under Chapter 816 specifically dealing with support.
In Rostad v. Hirsch, 148 Conn.App. 441, 469-470, 85 A.3d 1212 (2014) appeal dismissed, 317 Conn. 290, 116 A.3d 307 (2015), the court found that the respondent father did not neglect or refuse to support his son during the relevant time period and thus, the mother was not due support. Specifically, the Appellate Court made it clear that "[w]ithout a finding of neglect or refusal to furnish support prior to the action, there is no determination of support to be made under General Statutes § 46b-215 (a)(7)(A)...Id., 469
In the present case, the court credits the father’s testimony that he was consistently providing support throughout the three years next preceding the filing of the petition. In fact, the mother also testified that the father would give her money every time he was paid. Thus, the point of contention lies in the amount that was paid, not as to whether the father was consistently providing child support. The mother is seeking back child support equal to what the child support guidelines arguably would have called for, based on the parties earnings, for the relevant time period. As stated earlier, however, Rostad v. Hirsh, supra, makes it clear that without a finding of neglect or refusal to furnish support prior to the action, there is no determination of support to be made and, therefore, no need to refer to the guidelines per General Statutes § 46b-215 (a) (7) (B). Per the father’s calculations, he paid over $14,800 in support, while the mother claims he paid closer to $ 13,947. The court finds that either amount purported to be paid, considering the parties earnings, is not insubstantial. Therefore, lacking a finding of neglect or refusal to support, the court cannot and will not enter any arrearages.
The plaintiff mother is also seeking reimbursement of retroactive child care costs incurred during the three years next prior to the filing of the petition. She claims that she paid her mother (the child’s maternal grandmother), with whom the plaintiff mother lives, $200 a week to take care of the subject child. She testified that she paid her mother cash and has no receipts. The plaintiff mother could not recall when she first asked for help with these costs from the defendant father, but she did testify that upon asking him to help for preschool in September 2018, he started to give her an additional $50. The father claims that he was never aware that the child’s grandmother was charging the plaintiff, and that he was only asked to help pay for child care costs when the child started going to preschool on or about September, 2018. At that point, the defendant started to give the plaintiff an additional $50 every two weeks, for a total of $400 per month.
A " ‘child support award’ means the entire payment obligation of the noncustodial parent, as determined under the child support and arrearage guidelines, and includes current support payments, healthcare coverage, child care contribution and periodic payments on arrearages.’ [Regs., Conn. State Agencies § 46b-215a-1 (6).] The term ‘child care costs,’ in turn, is defined as ‘amounts expended for the care and supervision of a child whose support is being determined.’ Regs., Conn. State Agencies § 46b-215a-1 [ (4) ]. Thus, the noncustodial parent’s child care contribution to the custodial parent is ordered by the court and paid as part of the overall child support award." Farmassony v. Farmassony, 164 Conn.App. 665, 672, 138 A.3d 417 (2016). That said, if this court were to enter retroactive child care orders it must do so pursuant to General Statutes § 46b-215 (a) (7) (A). In short, the court must first make a finding of neglect or refusal to pay. In this case, the court credits the father’s testimony and does not find that he neglected his duty to assist with the cost of child care. Moreover, it is important to note that the costs incurred by the mother for preschool do not fall within the qualifying costs covered by the child care contribution per the guidelines as the mother testified that she was not working during the majority of the hours the child was in preschool and, thus, the costs incurred were not necessary to allow the parent to maintain employment. See Regs., Conn. State Agencies § 46b-215a-2c (g).
Based on all of the above, the court finds zero ($0) arrearages due and owing to the plaintiff mother up through June 4, 2019, the date the court entered the current support order. Any and all delinquencies due and owing to the mother since June 4, 2019, remain, as do the current support orders of the court entered on that day.