Opinion
FA020189738S
05-26-2017
Laurie Walshin v. David Walshin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael E. Shay, Judge Trial Referee.
The marriage of the parties was dissolved by decree of this court on July 1, 2004, as evidenced by a certain Memorandum of Decision (#163.10) dated June 30, 2004, as on file. They are the parents of two children, to wit: Emily, age 19; and Rebecca, age 16. Both children reside primarily with the plaintiff mother (" mother") in New Canaan. She has since remarried, and she shares some of the household expenses with her husband. The older child is currently a student at Bard College. The defendant father (" father") has recently vacated his apartment, and now resides at his office. The court entered an educational support order on December 22, 2016, in connection with Emily's education, following a three-day hearing. The matter comes before this court by way of the father's Motion for Modification of Child Support (#190.00) dated June 21, 2016, as well as his Motion for Attorneys Fees (#195.00) dated October 12, 2016, and the mother's Motion for Contempt (#191.00) dated June 21, 2016.
The father is a medical doctor who specializes in rehabilitative medicine with a private practice in Stamford since 1997. He is 53 years old and in apparent good health. The bulk of his practice income is derived from treating and evaluating patients in assisted living facilities. While he told the court that he works in excess of 80 hours a week, for a variety of reasons, he claims that his gross income has declined since the trial court made a finding that his net income was $6, 574.00 per month, or $78, 888.00 per year in 2004. On his latest financial affidavit shows a net income of $914.99 per week, or ($3, 965.00 per month). The court believes that for the most part the apparent decline is attributable to his inattention to the business aspects of his practice, for which he says he does not have time. He has no office help, having dismissed his office manager in 2004. He told the court that he has a backlog of paperwork and has failed to process many of his accounts receivable in a timely manner, and as a result, he has lost substantial revenue. Coincidently, the trial court made the same observation in 2004, at which time his accumulated accounts receivable amounted to $40, 000.00. The father told the court that his computer system and his software programs are up to date. Also, he has appeared to have blended personal and business deductions from his gross revenue, which tends to make a determination of his net income difficult. Moreover, he told the court that he has flexibility in what he pays himself, which fluctuates depending upon which needs are most pressing at the time. Nevertheless, he is substantially behind in his rent, malpractice insurance, billing service. In addition to his claim of a decline in revenue since the original order, he seeks a modification based on the fact that their daughter Emily has turned 18 and graduated from high school in June of 2016.
The mother is 51 years old and is also in apparent good health. She is employed by Masonicare Home Health and Hospice as a physical therapist where she works 32 hours a week which is capped by her employer. Occasionally, she has done some extra jobs at other agencies. She reports a current net income on her financial affidavit of $1, 073.78 per week, as opposed to $192.00 per week at the time of the dissolution. She and her husband jointly own a home in New Canaan, and she has some retirement accounts.
The original child support order, which remains unchanged, mandated that the father pay $392.00 per week for both children. Since February 1 of this year the father unilaterally reduced this to $145.00 per week. The mother now seeks to have the father found in contempt. While the court does not condone self-help, it does note that the amount of child support paid by the father since February is in excess of the Guidelines as calculated in Schedule A attached hereto.* In addition, the parties are subject to an educational support order entered by this court on December 22, 2016. This further strains his limited financial resources.
The matter was tried to the court on April 26, 2017, when the evidence closed. At the time of the hearing, the parties stipulated for the record that the mother would assume responsibility for the health insurance coverage for the children through her employment.
FINDINGS
The court having heard the testimony of the parties, and having considered the evidence and the statutory provisions, including General Statutes § 46b-56, § 46b-62(a), § 46b-84, § 46b-86(a), § 46b-87, and § 46b-215a et seq., as well as the Child Support and Arrearage Guidelines, hereby finds as follows:
1. That an award of child support may be modified upon the demonstration of a substantial change of circumstances since the date of the last order, unless the order itself clearly precludes modification; and that where a substantial change of circumstances has been found, the court shall consider the factors set forth in General Statutes § 46b-82. General Statutes § 46b-86(a); Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994); Schorsch v. Schorsch, 53 Conn.App. 378, 382, 731 A.2d 330 (1999); Spencer v. Spencer, 71 Conn.App. 475, 481, 802 A.2d 215 (2002).
2. That there has been a substantial change of circumstances since the date of the last order in that: (a) the child Emily has reached her majority in January 2016 and graduated from high school in June 2016. Irizzary v. Irizzary, 29 Conn.App. 368, 614 A.2d 868 (1992); and (b) the father's net income has substantially declined.
3. That no credible evidence was introduced to demonstrate that service of the postjudgment Motion for Modification was made pursuant to General Statutes § 46b-86(a) and § 52-50; and that therefore it is not appropriate for the court to grant a retroactive modification on the basis of the father's decline in income. Hane v. Hane, 158 Conn.App. 167, 173, 118 A.3d 685 (2015); Shedrick v. Shedrick, 32 Conn.App. 147, 151, 627 A.2d 1387 (1993).
4. That the elder child Emily turned age 18 in January 2016 and graduated from high school in June 2016; that, in general, the legal obligation to provide support ceases when the child reaches majority. Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25 (1979); that the father has filed a timely motion for modification based upon his daughter's reaching the age of majority; and that therefore it is appropriate to make any orders retroactive to July 1, 2016. Miller v. Miller, 181 Conn. 610, 613-14, 436 A.2d 279 (1980).
5. That in entering an order for child support, a court must consider both General Statutes § 46b-215b and the Child Support and Arrearage Guidelines Regulations (" Guidelines"), as well as the factors set forth in General Statutes § 46b-84; and that child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001).
6. That based upon his financial affidavit (#205.00) dated April 24, 2017, the net income of the father is $684.00 per week; and that based upon her financial affidavit (#206.00) dated April 18, 2017, the net income of the mother is $952.00 per week.
In order to arrive at the net income of the parties as calculated on " Schedule A, " the court used the gross incomes of the parties as set forth on their respective Financial Affidavits, and applied the Family Law software program.
7. That based upon the net income of the parties, the presumptive basic child support is $297.00 per week; and that the father's share is $125.00 per week ($542.00 per month). (See Child Support Guidelines Worksheet attached hereto and incorporated herein as " Schedule A." [*])
8. That a finding of contempt must be based upon a willful failure to comply with a clear and unequivocal order of the court. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001); that mere " noncompliance alone will not support a judgment of contempt." Gil v. Gil, 94 Conn.App. 306, 311, 892 A.2d 318 (2006); that " a judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper hearing." Kelly v. Kelly, 54 Conn.App. 50, 60, 732 A.2d 808 (1999); that " a finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony." Dickinson v. Dickinson, 143 Conn.App. 184, 190, 68 A.3d 182 (2013); that indirect civil contempt " should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015); and that under all the circumstances, the evidence does not support a finding that the father's actions amount to willful contempt.
9. That an award of attorneys fees is within the discretion of the court; and that under all the circumstances an award of attorneys fees is not warranted.
10. That commencing February 1, 2017, the father unilaterally reduced his child support payment to $145.00 per week ($628.00 per month) for the remaining child.
11. That the retroactive application of this order will result in an overpayment of to the mother in the amount of $8, 443.00 ($1, 699.00 minus $542.00 = $1, 157.00 x 7 months = $8, 099.00 plus $628.00 minus $542.00 = $86.00 x 4 = $344.00); that the father is entitled to a credit in that amount; that on December 22, 2016, the court entered an Educational Support Order that required the father to contribute $1, 250.00 per month toward Emily's college expenses; that at the same time, the court allowed the father to deduct the sum of $500.00 per month so long as he continued to be obligated on the initial child support order and was responsible for health insurance for the children; and that it is equitable and appropriate for the father to continue to deduct the sum of $500.00 from his obligation under the Educational Support Order (i.e. $1, 250.00 minus $500.00) and he shall continue to pay $750.00 per month until such time as the credit is satisfied or further order of court.
ORDER
FOR THE FOREGOING REASONS, IT IS HEREBY ORDERED:
1. Defendant's Motion for Modification of Child Support (#190.00) dated June 21, 2016, is HEREBY GRANTED. Commencing effective July 1, 2016, and monthly thereafter, the defendant father shall pay to the plaintiff mother the sum of $542.00 per month as and for child support, until such time as the child shall reach the age of eighteen years or shall be otherwise emancipated. The foregoing notwithstanding, if the child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or her nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).
2. In addition to the foregoing, commencing June 1, 2017, the defendant shall continue to pay the sum of $750.00 per month in accordance with the Educational Support Order entered on behalf of Emily Walshin until such time as the credit is satisfied or until further order of the court.
3. Unreimbursed medical expenses shall be divided 34% by the father and 66% by the mother. (See Child Support Guidelines Worksheet attached hereto as " Schedule A." *)
4. Plaintiff's Motion for Contempt (#191.00) dated June 21, 2016, is HEREBY DENIED.
5. Defendant's Motion for Attorneys Fees (#195.00) dated October 12, 2016, is HEREBY DENIED. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
6. The Court hereby orders a Contingent Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the child support order.
7. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).
[*]Editor's Note: The above referenced Schedule A has not been reproduced herein.