Opinion
No. FA 05-4019310
June 7, 2006
MEMORANDUM OF DECISION ON MOTION 108, DEFENDANT'S MOTION FOR MODIFICATION OF CHILD SUPPORT, POSTJUDGMENT
The defendant moves to modify the amount of child support he is obliged to pay, asserting that, alternatively, there has been "a substantial change in circumstances," or, that the guidelines are not applicable in light of the "shared parenting" situation that he asserts exists.
The marriage of the parties was dissolved on February 25, 2005, in the Commonwealth of Massachusetts. The plaintiff registered the judgment of that dissolution in Connecticut in December 2005. The judgment provides that the parties are to share joint legal custody of their daughter, date of birth September 18, 2002, and that the mother is to have "sole physical custody" of the child. Pursuant to the parties' agreement, incorporated into the Massachusetts decree, defendant father is to pay child support in the amount of $175 per week.
At oral argument in this matter, the Court decided the threshold issue disputed by the parties, and determined that Massachusetts, rather than Connecticut, law applies in resolving the parties' present dispute. C.G.S. § 46b-71(b); Colby v. Colby, 33 Conn.App. 417, 422 (1994); Vitale v. Krieger, 47 Conn.App. 146, 149 (1997).
The Commonwealth of Massachusetts Child Support Guidelines (effective February 15, 2002) provide: "Where the parties agree to shared physical custody or the court determines that shared physical custody is in the best interests of the children, these guidelines are not applicable." Section II, D. In this matter, based on the judgment decree and the testimony of the parties, the court finds that the parties do not have a "shared physical custody" situation. Massachusetts law also provides that ". . . the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary for the best interests of the child." Massachusetts General Laws, Chapter 208, § 28. The Massachusetts Guidelines also provide, "A modification may be allowed upon showing a discrepancy of 20% or more between an established order and a proposed new order calculated under these guidelines."
The parties have not produced in this court any guidelines worksheets or submissions that had been filed or prepared to establish the $175-per-week order that constituted the agreement that forms the basis of the judgment in Massachusetts. Consequently, there is no guidance to this court as to the basis or the calculations upon which the $175-per-week child support order was made. The court does have, however, the financial affidavits filed by the parties at the time of their divorce and at the time of the hearing of the captioned motion. The father's income, despite his testimony to the contrary, appears to have increased. Previously he had a base weekly income figure of $642 and his present base is $670. His prior "gross" weekly income was in the negative — "$1,019.08." His prior "net" weekly income was the negative figure of — "$1,019.08" and his present recitation of net weekly income is "$502." Father has testified that in his capacity as a self-employed carpenter, he has suffered losses and has had to cut back, eliminating several employees. He has, however, voluntarily entered into this self-employment status, having foregone the union-affiliated possibilities of employment that would provide a much more substantial weekly wage, which he had earned in the past. In addition, he has engaged in the major renovation of the home he owns in Massachusetts, no doubt a time-consuming effort.
At the time of the divorce, mother had just acquired (3 days before) employment providing an income of over $600 per week. Her financial affidavit at the time of the divorce reflects this development in a footnote, but reports in the text of this sworn statement that her weekly income was considerably less. At that time, she and the parties' daughter lived with the mother's parents. Mother's present financial affidavit reflects total weekly gross of $558, and a total weekly net of $505. However, $100 of that comes from a second job taken on by the mother. In addition, mother has now moved to Connecticut and has established her own residence for herself and the parties' daughter.
As previously stated, there is no information before the court at the present time to indicate how the $175-per-week figure was calculated. The only new guidelines form, provided to the court by the defendant father, and calculated pursuant to the Massachusetts Guidelines, concludes with a figure of $138 per week as child support due from the father. While that figure falls very close to the 20% discrepancy figure on which the guidelines indicate a modification "may" be based, the court does not find that the evidence reveals a material or substantial change in circumstances that warrants change of the child support orders, and the court cannot make a finding that downward modification of the child support would be in the best interests of the child.
Consequently, the defendant father's motion for modification is denied.