Opinion
No. FA 10-4113577 S
October 29, 2010
MEMORANDUM OF DECISION ON MOTION TO OPEN AND MODIFY (#104)
Before this court is defendant's motion to open and modify a judgment as to the amount of child support. The initial judgment entered in the Commonwealth of Massachusetts, and, among other things, the parties disagree as to whether Connecticut or Massachusetts law should control the modification decision.
I. History
On September 24, 2008, the Probate and Family Court of Middleboro, Plymouth County, Massachusetts, dissolved the marriage of the parties. The court awarded them joint legal custody of their two children, with primary residence to be with plaintiff, and defendant to pay $500 weekly child support. These and other salient provisions of the judgment were included within a comprehensive Separation Agreement which the parties had signed on June 9, 2008, and which the trial court ordered incorporated into its decree.
Subsequently, pursuant to the provisions of Conn. Gen. Stat. §§ 46b-70 and 71, defendant filed a certified copy of the Massachusetts decree in this venue. Simultaneously, he moved to modify the order as to child support alleging that "there has been a substantial change in circumstances since the entry of the divorce decree in that the defendant's income has decreased." It is undisputed that plaintiff and the children now reside in Connecticut, whereas defendant continues to reside in Massachusetts.
Sec. 46b-70. Foreign matrimonial judgment defined. As used in Sections 46b-70 to 46b-75, inclusive, "foreign matrimonial judgment" means any judgment, decree or order of a court of any state in the United States in an action for divorce, legal separation, annulment or dissolution of marriage, for the custody, care, education, visitation, maintenance or support of children or for alimony, support or the disposition of property of the parties to an existing or terminated marriage, in which both parties have entered an appearance.
Sec. 46b-71. Filing of foreign matrimonial judgment; enforcement in this state.
(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment.
(b) Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state; provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.
II. Legal Issues
Prior to the routine inquiry undertaken in response to a motion of this nature as to whether defendant's allegation is truthful, and, if so, what impact that should have upon the support order, this court must deal with defendant's contention that an answer to the question of how much child support is appropriate must be found in the child support guidelines of Connecticut rather than those of Massachusetts. (There is no dispute that the guidelines of these two sovereign states lead to substantially different outcomes). His arguments, however, are undermined both by the language of the Massachusetts decree and by clear provisions of Connecticut's statutes.
A. What the decree specifies
The Agreement accepted by the 2008 decree contains three provisions which are relevant to this issue.
First, at Article XIV, the parties expressly provided that "[t]his Agreement shall be interpreted, construed, and governed according to the laws of the Commonwealth of Massachusetts."
Second within Section D, which deals specifically with custody, they acknowledged, at paragraph 7, "that the Wife may be relocating to the State of Connecticut in the near future."
Third, within Section E, which deals specifically with child support, they agreed that "[n]othing herein, however, is intended to prevent either party from seeking modification of support based on the Massachusetts Child Support Guidelines."
This court directed the parties to brief the choice of law questions raised by these provisions, and both parties did so. Notwithstanding what appears to be the clear election of the Massachusetts guidelines in 2008, defendant argues, inter alia, that the agreement is ambiguous as to the choice of law. The Appellate Court has recently outlined the following process for evaluating a claim of ambiguity:
When the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A word is ambiguous when it is capable of being interpreted by reasonably well informed persons in either of two or more senses . . . Ambiguous can be defined as unclear or uncertain, or that which is susceptible of more than one interpretation, or understood in more ways than one.
In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.
Any ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. In giving effect to all of the language of a contract, the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.
Zahringer v. Zahringer, 124 Conn.App. 672 (Nov. 2, 2010) (Citations omitted; internal quotation marks omitted.)
He claims that the language in the parties' agreement reveals a "clarification as to modifiability and not as an indication that only Massachusetts law will apply." Granted, the Agreement does not employ the adverb "only," but that omission hardly creates an ambiguity. In light of defendant's then awareness that his soon to be ex-wife was intending a move to Connecticut, the election of Massachusetts law for future modification hearings seems especially deliberate. In the circumstances, there is no ambiguity upon which defendant can avoid the effect of this choice.
B. Applicable statutory authority
The court also rejects his policy arguments because they fly in the face of clear statutory language and controlling appellate authority of this state.
He cites Conn. Gen. Stat. §§ 46b-212o and 46b-213q(f)(2) as indicators that Connecticut guidelines must governs These are two provisions of this state's 2007 enactment of the Uniform Interstate Family Support Act, or "UIFSA." This uniform act, drafted in 1992 by the National Conference of Commissioners on Uniform State Laws, and substantially amended both in 1996 and again in 2001, was urged upon the fifty states by a 1996 Act of Congress making its adoption a condition of receiving federal funding for enforcement of child support obligations. Massachusetts has codified the uniform law as §§ 1-101 through 9-902 of Chapter 209D of its Annotated General Laws.
Sec. 46b-212o. Applicability of state law.
Except as otherwise provided in Sections 46b-212 to 46b-213w, inclusive, a responding tribunal of this state shall: (1) Apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and (2) determine the duty of support and the amount payable in accordance with the law and support guidelines of this state.
Sec. 46b-213q (2010 Supplement). Modification of child support order of another state.
(a) Except as provided in subsection (b) of Section 46b-213r, in any matter where the Family Support Magistrate Division does not have jurisdiction pursuant to subsection (f) of this section, upon petition a family support magistrate may modify a child support order issued in another state which is registered in this state if, after notice and hearing, such magistrate finds that: (1) The following requirements are met: (A) Neither the child, nor the obligee who is an individual nor the obligor resides in the issuing state; (B) a petitioner who is a nonresident of this state seeks modification; and (C) the respondent is subject to the personal jurisdiction of the Family Support Magistrate Division; or (2) this state is the state of residence of the child or a party who is an individual is subject to the personal jurisdiction of the Family Support Magistrate Division and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a family support magistrate to modify the support order and assume continuing exclusive jurisdiction.
(b) Modification of a registered child support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by the Family Support Magistrate Division and the order may be enforced and satisfied in the same manner.
(c) Except as provided in subsection (b) of Section 46b-213r, a family support magistrate may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and same child, the order that controls and shall be so recognized under Section 46b-212j establishes the aspects of the support order which are nonmodifiable.
(d) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.
(e) On issuance of an order by the Family Support Magistrate Division modifying a child support order issued in another state, the Family Support Magistrate Division becomes the tribunal having continuing exclusive jurisdiction.
(f)(1) If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, the Family Support Magistrate Division has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order.
(2) The Family Support Magistrate Division exercising jurisdiction under this subsection shall apply the provisions of Sections 46b-212a to 46b-212l, inclusive, and 46b-213g to 46b-213r, inclusive, and the procedural and substantive law of this state to the proceeding for enforcement or modification. Sections 46b-212m to 46b-213f, inclusive, 46b-213s to 46b-213u, inclusive, and 46b-213w shall not apply to such proceeding.
(g) The family support magistrate shall order the party obtaining the modification of a child support order to file, within thirty days after issuance of such modification order, a certified copy of such order with each tribunal that issued or registered an earlier order of child support. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file such orders pursuant to this subsection shall not affect the validity or enforceability of the modified order of the new tribunal having continuing exclusive jurisdiction.
Indeed, by 1998, all fifty states had legislation conforming to this mandate; Uniform Laws Annotated, Vol. 9, Part 1B, 162.
Section 604 of the uniform act, now codified as § 46b-213j of our law, is a choice of law provision. It dictates that the law of the issuing state (here, Massachusetts) is to be used to determine ". . . the nature, extent, amount, and duration of current payments . . ." of support. Defendant's reliance upon § 46b-213q(f)(2) is misplaced, as that provision is only applicable when, according to § 213(a) which defines the reach of that statute, ". . . [n]either the child, nor the obligee who is an individual nor the obligor resides in the issuing state . . ." (emphasis added); defendant remains a Massachusetts resident.
Sec. 46b-213j. Choice of law.
(a) Except as provided in subsection (d) of this section, the law of the issuing state governs: (1) The nature, extent, amount and duration of current payments under a registered support order; (2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and (3) the existence and satisfaction of other obligations under the support order.
(b) In a proceeding for arrears under a registered support order, the statute of limitations of this state or of the issuing state, whichever is longer, applies.
(c) A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state registered in this state.
(d) After a tribunal of this or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this state shall prospectively apply the law of the state issuing the controlling order, including its law on interest, arrears, current and future support, and on consolidated arrears.
Even if 46b-213q did apply, its subsection q(f)(2) specifically excludes § 46b-212o from applicability to a proceeding of this nature; ". . . Sections 46b-212m to 46b-213f inclusive, 46b-213s to 46b-213u, inclusive, and 46b-213w shall not apply . . ."; and this court will not defy the clear directive of our legislature.
Given the residences of the parties to this dispute, there does not appear to be any conflict between UIFSA and the statute providing the authority under which the Massachusetts decree was filed here in the first place, that is, § 46b-71. This statute appears still sufficient in directing how the court must adjudicate this controversy, mandating that a court conducting a hearing on modification of a foreign judgment filed here defer to the substantive law of the original state: ". . . in modifying . . . any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling."
The somewhat confusing relationship between these various statutory provisions is discussed at length in the recent case of Cartledge v. Evans, Docket Number HHDFA074028072S, Judicial District of Hartford at Hartford (2010; Frazzini, J.) [ 49 Conn. L. Rptr. 731]. That case is distinguishable because it turned upon the fact that both of the parents had taken up residence within the state of Connecticut prior to the modification hearing, unlike the instant case where the obligor remains a Massachusetts resident.
In Colby v. Colby, 33 Conn.App. 417 (1996), the trial court had modified the alimony provisions of a Massachusetts decree by applying Connecticut standards in the modification hearing. Reversing, the Appellate Court held that ". . . when modifying a foreign matrimonial judgment, a Connecticut court must apply the substantive law of the foreign jurisdiction . . . In the present case, the trial court and both parties relied wholly upon the statutes and case law of the state of Connecticut. The trial court's failure to apply Massachusetts law constitutes plain error . . . Where a statute dictates that the substantive law of a foreign jurisdiction is controlling and a trial court fails to apply such law, this comprises an extraordinary situation in which the error is so obvious as to affect the fairness and integrity of the judicial proceeding. Moreover, the parties cannot agree that Connecticut law shall apply in direct contravention of the legislative intent that the substantive law of a foreign jurisdiction controls in modifying a foreign matrimonial judgment." 33 Conn.App. 417, 421-22 (citations omitted; emphasis added).
Just one year later, in Vitale v. Krueger, 47 Conn.App. 146 (1997), that same court reversed another decision which had applied Connecticut child support guidelines in a hearing modifying a Texas child support order. That is the precise error which defendant here invites this court to commit. That invitation must be declined under the law of this state, and also because proceeding in that fashion would vitiate the agreement of the parties and the Massachusetts decree which incorporated that agreement.
III. Findings
Both in 2008 and today, defendant is employed as a salesman for a Massachusetts company which sells roofing materials for commercial buildings throughout New England. He earns a base salary augmented by commissions on his actual sales performance. The court which imposed the 2008 order upon him did so on the premise that he would earn $125,000 that year. Defendant established that sales have declined as a result of the national economic slowdown, and that his earnings year-to-date for 2010 will equate to an annualized income of about $94,000.
In addition, then and now, he enjoys the use of a company vehicle, including gasoline, repairs, and all operational costs excluding tolls he incurs when using it on his personal time; this permits him to avoid the cost of owning or maintaining his own vehicle.
No value was attributed to this employment benefit in the parties' arguments as to how much support is dictated by current Massachusetts guidelines. This court made a calculation on its own, hypothesizing that the vehicles' value would add $100 per week to defendant's gross income. Adding that amount to the formula produces a bottom line difference of about $18 per week.
In 2008, when living in the Commonwealth, plaintiff was earning an annual income of $35,846. Today, her annual earnings have increased to about $47,840.
Additionally, the 2008 order deviated from the guidelines then in effect, and the courts in Massachusetts enacted a revised set of guidelines effective January 1, 2009, which expressly supersede any previous editions. These two factors render today's decision more complicated than it would be if merely a comparison of the 2010 numbers with those of two years ago were required.
As to the deviation, although the parties agreed and the Massachusetts court ordered support of $500 weekly, the formula in effect in 2008 made an order of $622 the presumptively correct amount. Defendant insists that this history of the case ought to qualify him for a downward deviation today, and contends that approximately $150 a week is the proper measure of the reduction. The 2008 decree does not identify any basis for the deviation. The parties' testimony differed as to the reasons why their agreement included a deviation. This court credits plaintiff's version, which is that defendant had been physically and verbally abusive of her and that she conceded this point to reach an agreement. In short, the deviation was acquiesced in under duress, and without a reason recognized by law. There is no present reason for a downward deviation, and this court will not impose one upon the situation.
The court has performed the calculations required by the new Massachusetts guidelines taking into account its findings as to the present incomes of the parties, and determines that the weekly child support would be $454. The parties stipulated that $450 is the correct amount, a difference of inconsequence (See endnote 6, however).
IV. Orders
The motion to open and modify is granted. Defendant shall now pay child support in the amount of $450 weekly.
This modification is retroactive to July 12, 2010. At $50 per week from July 12 through October 31, plaintiff has received $750 in excess support.
Defendant requests leave to make his child support payments on a monthly rather than weekly basis. If expressed monthly, the $450 weekly is equal to $1950. On November 20, 2010, reflecting the $750 overpaid since July and now due him, defendant shall pay plaintiff the sum of $1200 (plus any unpaid support as may have accrued prior to October 31, at the rate of $500 per week). Thereafter, on the 20th of December and on the 20th, of each subsequent month, he shall pay her $1950 in support.
It is so ordered.