Opinion
No. FA-04-4000497S
June 30, 2009
MEMORANDUM OF DECISION RE Motions #248, 250, 251, 258, 260, 264.5, 265, 267, 271 324.
The defendant, Paul Watrous, through his postjudgment motions for modification (motions #258 and 265 — motions 250 and 251 being objections to the plaintiff's motions for contempt and attorneys fees) seeks to modify the court orders of child support and alimony arising out of the August 23, 2006 dissolution of his marriage to the plaintiff.
The defendant asks that his current child support and alimony obligations be terminated back to the date of the service of his motion and seeks the entry of a voluntary nominal order to reduce any previously found arrears. He also seeks the denial of the plaintiff's motions for contempt and attorneys fees.
The defendant argues that a substantial change in his circumstances has occurred that would justify his request since his last motion for modification dated March 23, 2007 was denied by the court, because he was subsequently deemed disabled by the United States Social Security Administration (on May 31, 2007) and granted monthly cash Supplemental Security Income (hereinafter referred to as "SSI") benefits. In making such an argument, the defendant relies upon the language in General Statutes § 46b-215b, which bars a Magistrate or Judge from using a court determined earning capacity for a person granted cash SSI benefits in forming a basis for deviating from the presumptive current support amount under Connecticut's Child Support Guidelines. He further contends that although the language of § 46b-215b does not apply directly to the use of a court found earning capacity in determining appropriate alimony orders that, consistent with the holding in Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993), and its progeny, its logic should be extended to apply to his alimony order in this case. He maintains that he has no other actual or regular and recurring gift income upon which to otherwise base an order for child support or alimony and thus seeks the termination of those orders.
On the issue of contempt, he argues that his inability to pay the orders as they are presently configured is unintentional and his failure to do so thus lacks the wilful noncompliance component necessary for a finding of contempt. On the issue of attorneys fees, he argues that he is without resources with which to pay such fees, that the plaintiff is equally or better situated than him in her ability to pay her own attorneys fees and that the interests of justice would not be served by the award of fees sought by the plaintiff.
The plaintiff, Cindy Watrous, through her postjudgment motions for contempt for non-payment of court-ordered child support, alimony and attorneys fees (motions #248, 264.5, 271 and 324 — motions 260 and 267 being objections to the defendant's motions to modify said orders) seeks enforcement of the orders of the trial court arising out of the dissolution of the parties' marriage on August 23, 2006, denial of the defendant's motions to modify and reasonable attorneys fees for the prosecution of her motions.
The plaintiff contends that pursuant to the findings of the trial court at the time of the dissolution the defendant has a continuing earning capacity of $1,000.00 gross per week and, over and above that sum, regular and recurring gift income from his father. She further argues that no substantial change in the defendant's circumstances has occurred since his last motion for modification of March 23, 2007 was denied by the court because the trial court took into account the defendant's claimed disability when making its findings and is not bound by the language of General Statutes § 46b-215b excluding an earning capacity from becoming a basis for deviating from the presumptive support amount.
She goes on to assert that, even if the defendant's motion for modification of support were to be granted by this court relative to his child support obligation that General Statutes § 46b-215b does not directly apply to alimony orders and thus this court would be free to deny the defendant's motion for modification relative to his alimony order. Further, should the defendant's motions for modification be granted, she argues against any retroactivity on the granting of said motions as they were not served in a manner consistent with General Statutes § 52-50 as she argues is legally necessary in order to allow for any retroactivity.
On the issue of contempt, the plaintiff argues that, since the trial court took into account the defendant's claimed disability when making its initial findings, the defendant's failure to pay his current support and alimony orders to this point is in fact intentional and thus supports a finding of wilful non-compliance necessary for a finding of contempt. On the issue of attorneys fees, the plaintiff contends that flagrant non compliance by the defendant with prior court orders and the unequal financial positions of the parties justifies the awarding of $20,300.78 in fees and costs to the plaintiff for the prosecution of her motions.
This court agrees with the defendant in so far as it finds that his formal determination of disability by the Social Security Administration constitutes a substantial change in circumstances as required for the granting of his motion for modification, that any prior found earning capacity must thus be discarded in determining an appropriate order for child support under the state guidelines, that the logic of Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993), applies to his sought after modification of his alimony order as well and that said disability determination serves as a defense against a finding of wilful non-compliance with the full amount of the courts order's relative to the plaintiff's motions for contempt.
This court agrees with the plaintiff in so far as it finds that any sums for child support, alimony and attorneys fees found owed by the defendant prior to the granting of this motion remain owed by the defendant to the plaintiff, any prior findings of contempt for the non-payment of such sums ordered by the court prior to the backdate of the defendant's SSI determination remain enforceable and that the defendant, while not presently possessed of an earning capacity that can be considered by the court, does have limited regular and recurring gift income upon which an order of child support and alimony can be based. As such, while a modification of said orders would be appropriate, their termination would not. This gift income, while insufficient to allow the defendant to pay the full amount of the court orders for alimony and child support, has given the defendant an ability to pay some portion of those orders and, as such, does not serve as a total bar against a finding of contempt in the case. Further, this court agrees with the plaintiff that the manner of service of the defendant's motions for modification of child support and alimony precludes retroactivity under the plain language of General Statutes § 52-50.
The marriage of parties in this matter was dissolved on August 23, 2006. The court entered orders for the defendant to pay the plaintiff child support in the amount of $50 a week. Such amount was a downward deviation from the guidelines amount of $174 a week. The deviation criteria cited were co-ordination of family support, most specifically related to the alimony orders entered, and other equitable factors. The court also entered orders for the defendant to pay the plaintiff alimony in the amount of $325 a week. The award of alimony was made on a lifetime basis subject only to remarriage or modification.
On March 23, 2007, the court rendered a decision on a motion for modification filed by the defendant and subsequent motions for contempt filed by the plaintiff. The modification filed by the defendant alleged many of the very same grounds upon which his present motion for modification is based. The court denied the modification and found the respondent in contempt of court, reaffirming its earlier findings as to his work ability and earnings capacity and further finding that the defendant had the ability to pay the orders based on the recurring gifts he had received from his father, Mr. Kenneth Watrous. At that time, the defendant had not been deemed disabled by a state or federal agency charged with making such determinations, nor was he collecting cash assistance of any sort based upon such a determination.
On May 31, 2007, the United States Social Security Administration granted the defendant SSI disability status, based upon his claimed disability, making such a grant retroactive to January 10, 2007. As of the present, the defendant is receiving $764 a month in SSI benefits. On July 25, 2007, the plaintiff filed her motion for contempt, alleging nonpayment of the court-ordered alimony and child support. On October 15, 2007, the defendant filed his motion for modification of the weekly alimony and support orders, relying upon his SSI award and disability determination as grounds for the statutorily required substantial change in circumstances.
I.
General Statutes § 46b-86 is the statute governing the modification of child support orders and sets forth the various grounds upon which such a motion may be granted.
A.
General Statutes § 46b-86 allows for the modification of both child support and alimony orders "upon a showing of a substantial change in the circumstances of either party . . ." The defendant argues that his granting of SSI benefits, and the accompanying determination of disability upon which such a grant is based, constitutes such a substantial change in circumstances. The plaintiff argues that, despite the SSI determination, no actual change in the defendant's physical and mental condition has occurred and therefore it would be inappropriate to find that a SSI determination alone is a basis for a substantial change in circumstances.
The plaintiff, however, relies primarily upon the court's determination of a specific earning capacity at the tine of the dissolution and a finding of regular and recurring gift income from his father, Mr. Kenneth Watrous, as the basis for upholding the prior order for child support. As will be seen in sections B and C below, the statutory impact of a SSI award/disability determination on the earning capacity of the defendant and changes in the amounts of the regular and recurring gift income provided to the defendant from Mr. Kenneth Watrous, render the finding of a substantial change in circumstances needed to sustain a motion for modification of the defendant's child support order not only possible, but appropriate.
As such, this court finds that the granting of SSI benefits to the defendant, and its attendant determination of disability by the United States Social Security Administration, is a substantial change in circumstances as required under General Statutes § 46b-86.
B.
General Statues § 46b-215b(b) provides, in pertinent part, that "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 a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income."
The defendant argues that relative to his $50 a week child support order, the granting of SSI status, and its attendant impact upon the earning capacity upon which his order was based, renders him entitled to a modification of such order. The plaintiff argues against such a position relying, among other things, upon the holdings in Lucas v. Lucas, 88 Conn.App. 246, 250, 869 A.2d 239 (2005) and Tevolini v. Tevolini, 66 Conn.App. 16, 30, 783 A.2d 1157 (2001).
Relative to the concept of earning capacity, it is the standard that, a "court may base financial awards on earning capacity rather than actual earned income of the parties . . . While there is no fixed standard for the determination of an individual's earning capacity . . . it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health . . . [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings." (Citation omitted; internal quotation marks omitted.) Gentile v. Carneiro, 107 Conn.App. 630, 638, 946 A.2d 871 (2008). "It is appropriate to consider a party's earning capacity `where there is evidence of that party's previous earnings.' Paddock v. Paddock, 22 Conn.App. 367, 371, 577 A.2d 1087 (1990)." Boyne v. Boyne, 112 Conn.App. 279, 283, 962 A.2d 818 (2009).
However, as noted above, there is an exception to utilizing earning capacity as a deviation criterion when awarding child support and that is when an obligor is the recipient of Supplemental Security Income (SSI) and or state administered general assistance (SAGA), as more fully articulated below.
In Lucas v. Lucas, 88 Conn.App. 246, 250, 869 A.2d 239 (2005), the Appellate Court held that "a finding of disability by the Social Security Administration [is] not binding on the Superior Court in its factual determination that [an obligor is] not working to his earning capacity for purposes of child support." The Court stated: "A finding by the Social Security Administration that the defendant is disabled for purposes of social security disability benefits does not preempt a court from making its own independent determination concerning the defendant's ability to work. See generally Tevolini v. Tevolini, 66 Conn.App. 16, 30, 783 A.2d 1157 (2001), (concluding that `court could not properly infer that the defendant's qualification for and receipt of social security disability payments foreclosed discussion as to the issue of her health relative to the alimony order')." Lucas v. Lucas, supra, 88 Conn.App. 250.
Although the holding in Lucas v. Lucas, supra, and Tevolini v. Tevolini, supra, would ordinarily be binding on this court, General Statutes § 46b-215b was amended during the 2003 legislative session to make a disability determination by the Social Security Administration binding on the court. As adeptly stated by Magistrate Lifshitz in Pruitt v. Horton, Superior Court, judicial district of New Haven at New Haven, Docket No. FA04-4000710 (August 11, 2008, Lifshitz, F.S.M.), "the Appellate Court did not mention the statute's existence in Lucas, even if only to note its enactment or distinguish whether the outcome would have been different had that statute been in effect at the relevant time."
General Statutes § 46b-215b provides in pertinent part: "(a) The child support guidelines established pursuant to section 46b-215a and in effect on the date of the support determination shall be considered in all determinations of child support amounts, including any past-due support amounts, and payment on arrearages and past-due support within the state. In all such determinations, there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support, including any past-due support, or payment on any arrearage or past-due support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case. (b) In any determination pursuant to subsection (a) of this section, 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 a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income."
Public Acts 2003, No. 03-130, § 1, effective October 1, 2003, amended General Statutes § 46b-215b by adding, inter alia, the following language: " (ii) In any determination pursuant to subsection (a) of this section, 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, the state-administered general assistance program or the general assistance program, parental earning capacity shall not be a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income."
Although the statute clearly indicates that a court may not deviate from the child support guidelines based on earning capacity when a party has been determined to be disabled by the Social Security Administration, or a state agency authorized to award disability benefits, the statute does not explicitly state that such a determination is binding on the courts of this state. Thus, the court will look to the legislative history of the statute for guidance.
General Statutes § 1-1(a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." Pursuant to the plain meaning rule, General Statutes § 1-2z, "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."" `When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement and to its relationship to existing legislation and common law principles governing the same general subject matter . . .' (Internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 16, 912 A.2d 992 (2007)." State v. Winer, 286 Conn. 666, 676-77, 945 A.2d 430 (2008).
Senator Andrew McDonald testified that the "bill is intended to make clear that if a non-custodial parent has been determined to be disabled by the Social Security Administration or the state, a family support magistrate applying the child support guidelines cannot ignore that determination by forcing the non-custodial parent to reprove that disability in the child support context." 46 S. Proc., Pt. 6, 2003 Sess., p. 1813.
Representative David Stone testified that "[o]ur family courts in the State of Connecticut routinely make awards for child support and in doing so, they rely upon the Connecticut State Child Support Guidelines. Those Guidelines set forth specific criteria upon which to make a finding of child support. They indicate what income has to be included or excluded and on what basis that child support award would issue. It also — those guidelines also contain a basis by which a court can deviate from the standard child support guidelines that would otherwise be applicable in a given case. One of the deviation criteria is earning capacity, not actual earnings received by the obligor of child support, but her earning capacity. This bill exempts disability payments from a federal program from being included within what is commonly referred to as `earning capacity.' . . . Under our federal rules for eligibility for social security benefits, either SSI or SSD, one has to be shown to be disabled in order to collect under those two particular programs. It is very difficult to prove disability necessary to be eligible for benefits under either one of those two programs. In this particular case and with this particular bill, what we're saying is that if it's determined that an obligor of child support is eligible and is receiving those benefits from the federal government, that the magistrate or the court, in awarding a child support order, cannot look to that income as earning capacity or [imputed] income to the obligor. There have been cases . . . which have made just that finding. However, there still are magistrates who notwithstanding the case law, do award child support based upon disability payments . . . This bill is a common sense bill to what is, at times, a very difficult problem. It takes this disability income out of the mix for determining child support. I think it is fair, given the very strenuous, very strict guidelines for receiving SSI and SSD payments from the federal government." 46 H.R. Proc., Pt. 11, 2003 Sess., pp. 358-60.
"In order for somebody to get SSI or Social Security Disability, it's a very rigorous process. The Social Security Administration collects all the evidence for people and when the evidence is inconclusive, they even go so far as to set up medical evaluations that the Social Security Administration pays for. Most of the people who quality for SSI would not be able to do that on their own and what we're looking for here — the Family Support Magistrate system doesn't have such a mechanism in place. What we're trying to do with this bill is that if a person appears before a Family Support Magistrate and there's already been a determination that this person is disabled, Social Security has reviewed the evidence and made this conclusion, this bill would say to the magistrates you can't say this person has an earning capacity. You can't deviate from the Child Support Guidelines. This person has no income. This person's medical evaluation has been reviewed by the Social Security Administration and disability determination and that it is not for the courts or the magistrates to look behind that determination." Conn. Joint Standing Committee Hearings, Judiciary Committee, Pt. 1, 2003 Sess., pp. 506-07; Lucy Potter, Esq., Greater Hartford Legal Assistance.
Joanne Lewis, an attorney for Connecticut Legal Services testified that "the Social Security Administration has funds, to assist in the evaluation of disability. It also has a huge bureaucracy devoted to investigating and determining whether an individual is disabled. The criteria for proving disability is rigorous and very specific, as outlined in the Code of Federal Regulations. The [court] not only has no mechanism to assist someone to prove her disability; it has no criteria or standard to prove that the person has no earning capacity . . . The pursuit of each these disabled people was not only unjust and possibly illegal, it was financially wasteful. Each of these case required time from the court system and Support Enforcement Services. Some also involved the Attorney General's office and other attorneys, some of whom were paid by the state, as well as doctors and therapists. Very little money was collected by the state in any of these cases. The resources of the state are far better used pursuing people who have or realistically could earn income, not disabled people who have already proven their disability to a government agency far more adept at judging their ability to work. This bill limits the application of the deviation criteria when someone has been found to be disabled by the state or by the Social Security Administration." Conn. Joint Standing Committee Hearings, Judiciary Committee, Pt. 1, 2003 Sess., pp. 574; Joanne Lewis, Esq., Connecticut Legal Services.
Raphael L. Podolsky of Legal Assistance Resource Center of Connecticut, Inc., testified that the "bill makes clear that, if an obligor (i.e., the non-custodial parent) has been determined to be disabled by the Social Security Administration or the state, a family support magistrate apply the Child Support Guidelines cannot effectively ignore this determination by imputing earning capacity to the obligor as a deviation criterion . . . It is our experience, however, that some family support magistrates continue to impute to disabled SSI and SSD (Social Security Disability) recipients income which they do not have. Such a practice is inconsistent with the underlying principles of those programs, is duplicative and wasteful of both physician and judicial time, and routinely produces results which are unfair to disabled obligors. First, no one is awarded SSI, SSD, state supplement, SAGA, or general assistance based on disability without medical review. In reality, obtaining such benefits is difficult, not easy; and there is no reason to believe that determinations of disability under those programs are made frivolously. Nor is there reason to think a magistrate is better able to make medical determinations than the agency personnel who have reviewed the obligor's medical records.
"Second, doctors who have already provided the Social Security Administration or the state with medical records, a medical evaluation, and other paperwork have little desire to spend half a day in child support court to repeat what they have already said. Being subpoenaed is obviously disruptive to a medical practice, and an indigent disabled person has no capacity to pay the doctor for his time . . . Third, however, most obligors who appear before magistrates are not represented by counsel. They often have little capacity to assemble their medical records . . . As a result, their inability to prove themselves disabled results in earning capacity being attributed to them, even though a government agency has found them to be disabled and unable to work. The resulting order is inaccurate and unfair.
"This bill attempts to resolve these problems by precluding such persons from having earning capacity imputed to them under a deviation criterion. Two things should be noted here. First, the bill applies only where a government agency has made a determination of disability. It does not apply to an obligor who merely claims to be disabled. Second, there are instances in which a disabled person does in fact have a small amount of earned income. The bill does not in any way preclude counting actual income earned by a disabled person for purposes of calculating child support liability. It only precludes presuming earning capacity in a disabled person who is in fact not working." Conn. Joint Standing Committee Hearings, Judiciary Committee, Pt. 1, 2003 Sess., pp. 575-76; Raphael L. Podolsky, Legal Assistance Resource Center of Connecticut, Inc.
Thus, based on a review of the legislative history, this court determines, despite any of the prior court's findings relative to the defendant's ability to work, that the legislature intended when a party has been determined to be disabled by the Social Security Administration, or a state agency authorized to award disability, that such a determination is binding on the court. As such, the defendant's prior determined $1,000 a week earning capacity may no longer be used in a determination under the guidelines of an appropriate present and future order for child support. As the defendant's actual earnings, as established through evidence and testimony, are zero for this period, the presumptive child support order in this case, based directly on earnings, is zero.
C.
However, both the Connecticut Child Support Guidelines and Connecticut case law allow for an order deviating from presumptive current support amounts. One of the valid criteria upon which to base such a deviation is the receipt by the obligor of regular and recurring gift income.
"In Unkelbach v. McNary, 244 Conn. 350, 710 A.2d 717 (1998), our Supreme Court recognized that contributions by a domestic partner to the living expenses of a parent may be included in that parent's gross income for child support determination purposes. Id., 365." Sander v. Sander, 96 Conn.App. 102, 109, 899 A.2d 670 (2006). In considering contributions to an obligor's living expenses from a spouse, domestic partner or parent, "`[w]here the past gratuities have been made on a regular basis . . . the court may reasonably assume that those contributions will continue. If they should terminate, any . . . award may be modified.' (Internal quotation marks omitted.) Unkelbach v. McNary, supra, 244 Conn. 361." Bartel v. Bartel, 98 Conn.App. 706, 713 n. 4, 911 A.2d 1134 (2006).
During the lengthy hearings before this court the defendant's father testified that his son gives him the money he receives from SSI and SAGA benefits and he uses that money to pay the expenses for rent and utilities and gives his son the small amount left over to use for gas and small incidental expenses. When there are additional month expenses he pays them for his son. (Transcript dated March 10, 2008, pp. 142, 144, 150, and 152.) The court notes that the son lives in a home owned by his father and the father could not recall the amount of the mortgage on the home because he owns six homes. ( Id., 151 and 144.) The defendant's father also testified that he has paid attorneys fees to the defendant's attorneys and $8,900 to keep his son from going to jail on a contempt motion because he fears for his son's health and well being. (Transcript of October 2, 2008, pp. 152, 160, 176, and 188.) The defendant's father further testified that he considered the monthly financial assistance he provided his son to be loans but stated that he forgives any loans he made to his son. ( Id., 160.) The defendant's father also stated that he would not pay any more of the plaintiff's attorneys fees and told Judge Swienton he was "not going to be extorted by these courts." ( Id., 151.)
The testimony elicited on the issue of the specific amounts of such gift income, along with the various financial affidavits submitted by the defendant throughout the case, were at best muddled, being at times contradictory. While it is clear from the prior record and prior findings in this case that Mr. Kenneth Watrous has, in the past, provided his son with substantial regular and recurring gift income, what is also clear from his testimony is that he has substantially reduced the frequency and amounts of such gifts.
Plaintiff's counsel, understandably given past circumstances and holdings, questions the intent and veracity of Mr. Kenneth Watrous's statements on gift income. However, although past gratuities made on a continuing basis can be a reason for deviation from the guidelines; see Bartel v. Bartel, supra, 98 Conn.App. 713 n. 4; after weighing the credibility of the testimony and determining whether holding the defendant responsible for the full amount of future child support payments requires payment by a third party, it is clear that Mr. Kenneth Watrous has definitively reduced the amount of regular and recurring gift income he provides to the defendant.
"[I]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom. (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920, A.2d 236 (2007)." (Internal quotation marks omitted.) Comm. on Human Rights Opportunities v. Sullivan, 285 Conn. 208, 233, 940 A.2d 878 (2008).
"Although the record may reveal inconsistent evidence on [an] issue, `[i]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony.' (Internal quotation marks omitted.) Lusa v. Grunberg, 101 Conn.App. 739, 758, 923 A.2d 795 (2007)." Barber v. Skip Barber Racing Field, LLC, 106 Conn.App. 59, 69, 940 A.2d 878 (2008).
Wading though the testimony and evidence provided, and using its best efforts to parse the relevant evidence and determine an accurate amount of regular and recurring gift income, the court finds that throughout the period from the filing of his motion to the present, the defendant has received, on average, approximately $110 a month ($25 a week on average) in regular and recurring gift income from his father, Mr. Kenneth Watrous.
As such, it is appropriate to use such a figure in determining the continuing amount of such gift income available to rely on in ordering child support under the deviation criteria of the guidelines. Further, it should also be noted that, during final argument, counsel for the defendant offered that his client pay the sum of $20 per week towards any arrears found by the court in this matter. When taken alongside statements made by the defendant's father, the court finds it reasonable to determine that such a sum bolsters the court's finding of $110 a month (or $25 a week on average) as the amount of regular and recurring gift income upon which the defendant may rely.
Under the Connecticut Child Support Guidelines earnings of $25 per week (or $110 per month) renders the obligor `low income' as defined by the guidelines and results in an order for child support being calculated on his income alone without reference to the income of the custodial parent. Further, such a figure falls below the minimum figure of $50 a week appearing on the Schedule of Basic Support Obligations set forth on page 10 of the guidelines and thus requires a deviation from those guidelines rather than the imposition of a guidelines order of support in this case. However, using the schedule, one can easily extrapolate downward from a $50 earnings figure, which calls for an order of $5 per week in current support, to a $25 earnings figure, which would reasonably call for the entry of an order of current support in the amount of $2.50 a week consistent with the guidelines scheme. Such sum is therefore ordered as a deviation from the guidelines, in the best interests of the minor child, for the support of the one minor child in this case. Further, the maximum amount of 20% of the current support, or $0.50 per week, is order against the defendant's child support arrearage in the matter — such arrears to be calculated by Support Enforcement Services consistent with the further findings of this court.
It is worth noting that, this figure, when compared to the total amount of gift income of $25 per week found available to the defendant to use to pay his forgoing and past child support and alimony obligations, is also in keeping with the percentages of alimony and support originally ordered by way of total coordination of family support by the trial court at the time of the parties' dissolution of marriage (as noted $375 a week — $50 in support and $325 in alimony — was ordered and the deviation for coordination of family support brought the child support order to 13% of the total order — taken together with the arrears order it now represents 12% of the total orders).
Finally, the defendant argues for the termination of his current support obligation based upon the grounds he articulates to support his modification. In the interest of clarity, the court will briefly address this argument. While the court is persuaded, for the above articulated reasons, that the substantial change in circumstances necessary to grant a modification in this case has been proven, it is not convinced that such a change stemming from the defendant's present SSI status is necessarily permanent, nor given the findings of the court relative to the regular and recurring gift income available to the defendant, that he has no source of income whatsoever with which to pay a child support order. As such, a modification, not a termination, of the defendant's current support obligation is appropriate in this case.
D.
The plaintiff reasonably suggests at least two further grounds for potential deviations to the defendant's child support obligation based upon other deviation criteria as outlined under the guidelines, Best Interests of the Child (46b-215a-3(b)(6)(C) under the Guidelines) and Other Equitable Factors (46b-215a-3(b)(6)(D) under the Guidelines).
i.
Supplemental security income (SSI) is excluded from the definition of income whereas social security disability (SSD) is included in the definition of income under the child support guidelines. The case of Marrocco v. Giardino, 255 Conn. 617, 767 A.2d 720 (2001), however, discussed the application of another deviation criterion where the obligor's sole source of funds was SSI and state supplemental benefits. "The principal issue in this appeal is whether, in an action for child support, the use of the `best interests of the child' criterion may justify an order against the noncustodial parent to pay child support from his public assistance benefits, an obligation otherwise proscribed by the child support and arrearage guidelines (guidelines)." Id., 618.
In Marrocco v. Giardino, supra, 255 Conn. 617, the court noted that both SSI and state supplementation benefits are awarded on the basis of need and are designed to protect the individual recipients from poverty and that requiring child support to be paid there from would reduce the recipient's income below that necessary to protect him or her from poverty in contravention to the legislative policy that drives these programs. "The primary purposes of the current guidelines are: `(1) To provide uniform procedures for establishing an adequate level of support for children, and for repayment of child support arrearages, subject to the ability of parents to pay . . . (2) [t]o make awards more equitable by ensuring the consistent treatment of persons in similar circumstances . . . (3) [t]o improve the efficiency of the court process by promoting settlements and by giving courts and the parties guidance in setting the levels of awards . . . [and] (4) [t]o conform to applicable federal and state statutory and regulatory mandates.' Child Support and Arrearage Guidelines (1999) preamble, § (b), p.i." Marrocco v. Giardino, supra, 255 Conn. 627. The current guidelines, as amended in 2005, set forth the same purposes in the preamble in § (c), p.ii. Furthermore, one of the clarifications in the current guidelines is that "[t]he social security benefits inclusion now specifically excludes Supplemental Security Income for a parent or a child." Child Support and Arrearage Guidelines (2005) preamble, § (h)(A) iii, p.x.
Included in the definition of gross income are "social security benefits ( excluding Supplemental Security Income (SSI) for a parent of a child), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined." (Emphasis added.) Regs., Conn. State Agencies § 46b-215a-1(11)(A)(x). In addition, SSI payments and federal, state, and local assistance grants are now specifically listed under the exclusions sections of the regulations. Regs., Conn. State Agencies § 46b-215a-1(11)(B)(ii) and (iii), respectively.
A review of the Preamble to the Child Support and Arrearage Guidelines effective August 1, 2005, which is not part of the official regulations but is intended to assist users of the guidelines, is helpful. "The commission determined that the deviation criteria are generally working well, and that minimal changes to the regulation were needed. It also found, however, that some clarification was required, and that the condition of three new criteria was warranted. The commission recognizes that keeping the deviation criteria to a minimum serves the stated guidelines purpose of ensuring consistency and promoting settlements. It also finds, however, that due regard to the best interests of the child, as well as fairness to the parents, requires a description of the specific circumstances in which the presumptive support amounts may be inappropriate or unjust. The commission considered case data reported from the automated system maintained by the state's Title IV-D child support agency in arriving at the regulatory amendments." Child Support and Arrearage Guidelines (2005) preamble, § (j)(1), p.xii.
In addition, "[t]he commission added language in the introduction and throughout the section to clarify its intent to restrict the application of the deviation criteria to the specific circumstances stated in the lettered subparagraphs listed under the six category headings. For example, under the second heading `extraordinary expenses for care and maintenance of the child,' education expenses, un-reimbursable medical expenses, and expenses for special needs are listed as the criteria for deviation. Under the revised regulations, these three listed criteria, and no others, may warrant deviation under the category `extraordinary expenses for care and maintenance of the child.' There may be other extraordinary expenses for care and maintenance of the child, but unless such expenses can be characterized fairly as falling under one of the three specific listed criteria, they should not be found to warrant a deviation from presumptive support amounts. Similarly, while acknowledging that agreements of the parties to a child support determination should carry some weight in setting appropriate support amounts, the commission included language in the section introduction that is intended to ensure that the best interests of the child and an adherence to guidelines principles is embodied in such agreements. The new language permits agreements to set support amounts that deviate from the presumptive amounts, but requires that such agreements cite specific deviation criteria and factual bases to justify any variance. Finally, as noted in the discussion of the arrearage guidelines, the commission added language at the beginning of that section of the regulations to clarify that the deviation criteria are intended to apply to the determination of periodic payments on child support arrearages." Child Support and Arrearage Guidelines (2005) preamble, § (j)(2), p.xii-xii.
"The commission reviewed all of the other existing deviation criteria and determined that no substantive amendments are warranted at this time. The commission notes, however, that the deviation criterion for a parent's earning capacity must now be read in conjunction with subsection (b) of section 46b-215b of the Connecticut General Statutes which prohibits application of such criterion in certain cases when the parent qualifies for disability benefits." Child Support and Arrearage Guidelines (2005), preamble, § (j)(5), p.xiii. During deliberations, the commission "employed several more research and data-gathering techniques, including but not limited to: examination of the statistical records of the computerized Connecticut Child Support Enforcement System relating to the application of the guidelines to ensure that deviations from the guidelines are limited . . ." Id., § (k)(2), p.xiv.
Our Supreme Court has considered the commission's decision to exclude SSI and public assistance grants in the calculation of presumptive support amounts. "The policies underlying the commission's decision to exclude both SSI and public-assistance grants from the guideline's presumptive calculation of child support compel a conclusion that deviation from the guidelines cannot be premised on the availability of income attributable to those sources. First, the commission's decision to exclude SSI from gross income in 1994 was based on the fact that SSI is a federal social welfare program designed to provide a guaranteed minimum income level necessary for the subsistence of individuals who cannot work because of age, blindness or disability. Schweiker v. Wilson, 450 U.S. 221, 223, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Child Support and Arrearage Guidelines (1994) preamble, § (f)(1)(c), p. viii (`[SSI] has been eliminated as a gross income inclusion because it is a means tested federal assistance grant'). `Because of the nature of the program's mission, SSI recipients have a very low income level and little, if any, opportunity to raise that level because of their age or disability.' Young v. Young, 802 S.W.2d 594, 598 (Tenn. 1990). Similarly, state supplementation is designed to provide only a minimum level of support to those recipients of SSI whose expenses exceed their current benefits. General Statutes § 17b-600. Thus, both SSI and state supplementation are awarded on the basis of need and are designed to protect the individual recipients from poverty. It therefore follows that allowing child support payments to be deducted from this already small figure, would reduce the recipient's income below that necessary to protect him or her from poverty; Becker County Human Services v. Peppel, 493 N.W.2d 573, 575 (Minn.App. 1992); Young v. Young, supra, 802 S.W.2d 598; in contravention to the legislative intent that drives these programs. The fact that the commission expressly excluded both SSI and public assistance grants from the calculation of gross income indicates that the commission recognized the purpose underlying these programs and determined that parents should not be required to subsist on below poverty level incomes so that they may provide something in child support. Therefore, although [a custodial parent] is correct in [the] assertion that the intent of the guidelines is to ensure that parents support their children, that principle has no application to those parents whose sole source of income is SSI and state supplementation." Marrocco v. Giardino, supra, 255 Conn. 630-33. Furthermore, the Supreme Court was "not persuaded that public assistance grants, including SSI benefits and state supplementation, qualify under the deviation criterion, `best interests of the child.' As noted previously herein, the deviation criteria must be read so as to be consistent with the guidelines . . . To allow a deviation from the guidelines . . . premised on the availability of public assistance grants, would be inconsistent with the guidelines because [t]he guidelines expressly provide that public assistance grants are not to be included in [the] determination of gross income." (Citation omitted; internal quotation marks omitted.) Id., 634-35. The Court stated that permitting the best interest of the child as a reason to deviate from the guidelines in cases where the obligor is the recipient of public assistance grants "would in effect permit the exception to swallow the rule." Id., 636.
Therefore, this court finds no alternative but to follow the holding and reasoning of our Supreme Court and find that deviation from the guidelines in the present case based on the best interest of the child is in contravention of the legislative intent that drives the SSI program and the guidelines themselves.
ii.
"In Feliciano [v. Feliciano, 37 Conn.App. 856, 859, 658 A.2d 146 (1995)], the Appellate Court addressed . . . [the] issue . . . [of] whether public assistance grants, although expressly excluded from the definition of gross income, qualified under the deviation criterion, `other equitable factors,' and therefore could be considered in calculating child support. Id. The court concluded that allowing this deviation would create `a back door method to consider something the legislature believed should not be considered.' (Internal quotation marks omitted.) Id. The Appellate Court reasoned that `[w]here one part of the guidelines provides that public assistance benefits are not to be considered in establishing gross income, it would be manifestly inconsistent to allow those same benefits to be used as a deviation criterion under the catchall exception of other equitable factors.' Id. This court affirmed that determination. Feliciano v. Feliciano, 236 Conn. 719, 721, 674 A.2d 1311 (1996)." Marrocco v. Giardino, supra, 255 Conn. 635. Here again, the Supreme Court concluded that permitting "other equitable factors" as a reason to deviate from the guidelines in cases where the obligor is the recipient of public assistance grants "would in effect permit the exception to swallow the rule." Id., 636.
For all of the foregoing reasons, this court again finds no alternative but to follow the holding and reasoning of the courts of our state and will not deviate from the child support guidelines by utilizing the catchall criterion "other equitable factors."
E.
Having granted the defendant's motion for modification and set a new current support and child support arrearage order, the court now turns to the issue of the retroactivity — the appropriate effective date for the granting of the motion, the setting of new orders and the determination of arrears under the old and new orders.
General Statutes § 46b-86(a), provides in relevant part: "No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to 52-50." Connecticut General Statutes § 52-50(a) provides: "All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person." "Thus, according to the plain language of the statute, retroactive modification is permitted if there is a pending motion." Esposito v. Banning, 110 Conn.App. 479, 484, 955 A.2d 609, cert. denied, 289 Conn. 946, 959 A.2d 1011 (2008). However, it is equally clear that such retroactivity only applies to motions served in a manner consistent with General Statutes § 52-50.
Unfortunately for the defendant, the law is clear in this matter. In the present action the defendant filed his motion to modify child support and a motion to modify alimony on August 8, 2007. However, he failed to serve his motion consistent with the dictates of General Statutes § 52-50, having provided service via certification from counsel rather than a state marshal, constable or other proper officer authorized by statute, or by an indifferent person.
The motion for modification was file stamped by the court on two different dates those being October 9, 2007 and October 24, 2007. Handwritten on the second page of the motion under the notation that a filing fee was paid is the date 8/8/07 and the computerized print out of the court docket indicates a filing date of October 8, 2007. A marshal's return of service was not returned to the court on any of those dates.
Based on the analysis of the issues presented, the defendant has demonstrated a substantial change in circumstances and his motion has been granted. This does not, however, erase the prior amount of the defendant's arrears for child support and alimony nor does the granting of the motion to modify liquidate the amount the defendant owes the plaintiff for attorney fees that were outstanding prior to August 8, 2007. Further, under the law, it does not entitle the defendant to any retroactivity on the granting of his motion. It is thus left to the court, in its consideration of the law and its need to balance all of the competing claims at stake in the motions before the court, to determine, consistent with the statutory dictates, an appropriate effective date for the commencement of its new child support order.
After a period of time in which the proper venue this matter was to be heard in was decided, the parties first appeared before the Family Support Magistrate Court in this jurisdiction on January 9, 2008. Argument on the parties' various motions began after the transition in Magistrate assignments from Magistrate Harris T. Lifshitz, who heard the January motion, to the present court in March of 2008. This court began taking testimony and, after several days of hearing and a lengthy hiatus while a decision was rendered by the Appellate Court on an appeal of the original dissolution judgment, remanded back to the Superior Court for further orders, and further returned to this court by the Superior Court for action on the motions.
In all, the evidentiary phase of the hearings on these motions did not end until October 10, 2008. The parties and court set a mutually agreed upon briefing schedule which called for the first round of briefs to be filed by both sides on November 19, 2008 (a date which was extended to November 21, 2008 at the request of the plaintiff), responses to those briefs to be filed initially by December 10, 2008 (a date which was extended by the court to December 31, 2008 in recognition of the holiday season) with any final reply briefs being due three weeks later on January 21, 2009.
Briefs were filed by both parties for both the November and December dates and the plaintiff filed a motion for further attorneys fees in connection with the prosecution of her motions on January 13, 2009. Such motion was ultimately withdrawn (after an appearance before the court) and the final briefing deadline passed unused at the end of January of this year. This court has found itself long engaged in researching, drafting and redrafting this decision, contrary to its original design to produce a finished product well within the practice book timeframe for such. This decision was thus rendered with a final date of June 30, 2009 (the court takes this opportunity to sincerely apologize to the parties for the delay imposed by it upon them connected with the timing of the filing of its decision in this matter).
This court, unable to grant the retroactivity requested by the defendant for the above noted reasons, concludes, following all of the statutory dictates, applicable case law and relevant equitable factors, that the best interests of justice are not served in this matter by making the orders effective at either the date of the filing of the motion or its first appearance in court (on one end of the spectrum) or on the date of the court's final decision (on the other). Instead, the court concludes that the law allows the defendant's motion be granted, and his orders for child support and arrears be modified, effective the last date the matter was fully concluded in argument — December 10, 2008 (effectively the last date a brief was filed in this matter — the parties having forgone their ability to file briefs beyond that date). As such, any arrears calculated by support enforcement should run at the $50 a week rate up to that date and at the new $2.50 a week rate since that date.
F.
The parties spent a considerable amount of time debating the appropriateness of an order for immediate wage withholding in this matter. While there may have been some disconnect between their two positions on the matter (with the defendant insisting that the plaintiff was demanding that any orders for child support and alimony be withheld directly from the defendant's SSI income and the plaintiff claiming her position called not so much for that, but for other forms of withholding), the court, in responding to what it sees as clear state and federal mandates to order immediate wage withholding for all orders of child support issued in Connecticut, nevertheless wishes to make clear its orders relative to whether it is ordering direct garnishment of the defendant's SSI benefits to secure its orders for child support and arrears.
"Benefits received through the SSI program are exempt from attachment, garnishment, levy, execution or any other legal process. This means that creditors cannot obtain payment of debts directly from these benefits. Even if the benefits are placed in a bank account, they are still protected from the claims of creditors. In addition, unlike other federal benefits received based on remuneration for employment, SSI cannot be garnished or attached for child support or alimony. This is consistent with the idea that such benefits are reserved for the support of the eligible individual." A. Epps, "To pay or Not to Pay, That is the Question: Should SSI Recipients be Exempt from Child Support Obligations?," 34 Rutgers L.J. 63, 67-68.
In Davis v. Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000), the appellant and her former husband (Randy) had two children born during the course of their marriage. Id., 351. As part of the settlement reached in the divorce the appellant agreed that Randy would have custody of the two minor children and Davis would not pay child support because she was unemployed. Id. Approximately nine years subsequent to the divorce the Office of Child Support Enforcement (OCSE) intervened in the case and Randy assigned his rights to pursue child support to OCSE. Id. "In its petition to set child support, OCSE requested that Davis pay current and past support, secure and maintain health insurance for the children, and be responsible for one-half of the medical costs not paid by insurance. Davis answered the petition . . . and alleged that she was disabled due to paranoid schizophrenia and only identified her sole income source as $494 per month in SSI benefits." (Emphasis added.) Id., 351-52.
It is noted at the outset, that the state of Arkansas defines income broadly and does not specifically include nor exclude SSI benefits from the definition of income. As the Arkansas Supreme court stated, that while "there is no direct enactment exclusive to SSI exempting it from state child-support orders, there is specific, clear federal law limiting state court authority generally with respect to SSI and Social Security Disability (`SSD') payments. Congress expressly protected Social Security benefits from legal process in 42 U.S.C. § 407 and § 1383(d)(1). `Section 407 [provides] . . . (a) The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law . . ." (Emphasis added.) Davis v. Child Support Enforcement, supra, 341 Ark. 354-55.
"In Administrative Order of the Court Number 10, we defined `income' as: Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for: 1. Federal and state income tax; 2. With-holding for Social Security (FICA), Medicare, and railroad retirement; 3. Medical insurance paid for dependant children, and 4. Presently paid support for other dependents by Court order. This definition is intentionally broad and designed to encompass the widest range of potential income sources for the support of minor children. The trial court and appellate court interpreted `income' under Order 10 to include SSI payments from the federal government." Davis v. Child Support Enforcement, supra, 341 Ark. 357-58.
"[S]ince the enactment of § 407, Congress has carved out a limited exception for child-support purposes in 42 U.S.C. § 659. There, Congress consented to income withholding, garnishment, and similar proceedings for enforcement of child-support and alimony obligations from federal moneys payable based on `remuneration from employment.' That statute [provides in pertinent part]: `(a) Consent to support enforcement' `Notwithstanding any other provision of law (including section 407 of this title and section 5301 of Title 38), effective January 1, 1975, moneys ( the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony. (Emphasis added.)" Davis v. Child Support Enforcement, supra, 341 Ark. 355-56.
"Notably, the exception created by 42 U.S.C. § 659 applies only to moneys `the entitlement to which is based upon remuneration for employment.' This exception could not apply to federal SSI benefits. SSI benefits are not remuneration for any past or present employment. No premiums, deposits, or other payments have been paid to qualify for them. Put simply, SSI is federal welfare for the poorest of the nation's citizens." Davis v. Child Support Enforcement, supra, 341 Ark. 356.
"The Supreme Court explained the purpose of SSI benefits in Schweiker v. Wilson, 450 U.S. 221 (1981). There, the court stated: In October 1972, Congress amended the Social Security Act (Act) to create the federal Supplemental Security Income (SSI) program, effective January 1, 1974. 86 Stat. 1465, 42 U.S.C. § 1381 et seq. This program was intended `[t]o assist those who cannot work because of age, blindness, or disability,' S. Rep. No. 92-1230, p. 4 (1972), by `set[ting] a Federal guaranteed minimum income level for aged, blind, and disabled persons,' id., at 12. The SSI program provides a subsistence allowance, under federal standards, to the Nation's needy aged, blind, and disabled. Included within the category of `disabled' under the program are all those `unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.' § 1614(a)(3)(A) of the Act, 42 U.S.C. § 1382c(a)(3)(A)." Davis v. Child Support Enforcement, supra, 341 Ark. 356.
The similarity between SSI and SSD is that the person applying for benefits must "prove that he or she is disabled from performing any `substantial gainful activity' or sustained work for pay." Id. There is, however, a substantial difference between the two. When applying for SSD an applicant seeks insurance benefits based on money withheld for the applicant's paychecks. An applicant will not qualify for SSD unless he or she "paid into the program at least five out of the prior ten years, or twenty out of forty quarters. SSI recipients, however, either never paid this `premium' or never paid enough into the system to qualify for SSD. In other words, the benefits an SSI recipient receives are not based on how much he paid into the system, but instead how much he or she needs to maintain `a Federal guaranteed minimum income level for aged, blind, and disabled persons.' Schweiker, supra." Davis v. Child Support Enforcement, supra, 341 Ark. 356-57; see also McGill v. McGill, 801 N.E.2d 1249, 1252 (Ind.App. 2004) (same); Cox v. Cox, 654 N.E.2d 275, 277 (Ind.Ct.App. 1995) (same).
Despite the distinction between SSD and SSI they "can interrelate. This interplay illustrates the Congressional intent underlying SSI. For instance, if a disabled worker draws $300 per month in SSD based on their employment history, their monthly income is $194 below the Federal guaranteed minimum income level for aged, blind and disabled persons. Based upon the amount that the person paid into the Social Security system during the years they worked, he or she may also be entitled to an additional $194 to raise him or her to the `federal guaranteed minimum income level' for a disabled person. Maintenance of this minimum income level is thus the fundamental purpose of SSI. As stated in the federal regulations governing SSI, `[t]he basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who arc age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level. The supplemental security income program replaces the financial assistance programs for the aged, blind, and disabled in the 50 States and the District of Columbia for which grants were made under the Social Security Act. Payments are financed from the general funds of the United States Treasury.' 20 C.F.R. § 416.110." Davis v. Child Support Enforcement, supra, 341 Ark. 357.
Based on the purpose SSI serves, the Davis court ruled that federal law prohibits state court-ordered child support payments exclusively from SSI benefits, and noted that thirty-eight states have exempted SSI benefits from inclusion in a calculation of gross income for child support purposes. The court concluded that the clear and substantial federal interest would be subject to great harm if SSI benefits were subject to state court child support orders and stated "that the sovereign immunity exception created by § 659 does not apply to SSI benefits." Id. "Congress has made no sovereign immunity exception for non-remunerative federal benefits such as SSI. Hence, those benefits remain free from `execution, levy, attachment, garnishment, or other legal process. We thus join the majority of the states [including Connecticut] that have addressed this issue and hold that Arkansas courts cannot order child-support payments based upon income from federal SSI disability benefits." Id., 358; see also Burns v. Edwards, 367 N.J.Super. 29, 32-33, 842 A.2d 186 (2004) (same).
In Burns v. Edwards, supra, 367 N.J.Super. 39, the court held that "[b]enefits received through the SSI program are exempt from attachment, garnishment, levy, execution or any other legal process. 42 U.S.C.A. § 407(a); 20 C.F.R. § 581.104. Specifically, SSI cannot be garnished or attached for child support or alimony. 42 U.S.C.A. § 659(a). Conversely, Congress has waived the sovereign immunity created by 42 U.S.C.A. § 407(a) with respect to SSD payments and permits enforcement of child support or alimony obligations through execution against SSD payments. See 42 U.S.C.A. § 659(a)."
"Section 407(a), [is] commonly called the Act's `anti-attachment' provision.'" Washington State Department of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 379, 123 S.Ct. 1017, 154 L.Ed.2d 10 (2003). In Philpott v. Essex County Welfare Bd., 409 U.S. 413, 73 S.Ct. 590, 34 L.Ed.2d 608 (1973), and Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988) (per curiam) the issues "involved judicial actions in which a State sought to attach a beneficiary's Social Security benefits as reimbursement for the costs of the beneficiary's care and maintenance. See Philpott, supra, at 415 (`Respondent sued to reach the bank account'); Bennett, supra, at 396 (`The State filed separate actions in state court seeking to attach Social Security benefits'). In each case, we held that the plain language of § 407(a) barred the State's legal action, and refused to find an implied exception to the antiattachment provision for a State simply because it provides for the care and maintenance of a beneficiary. See Philpott, supra, at 416; Bennett, supra; at 397. Unlike the present case, then, both Philpott and Bennett involved forms of legal process expressly prohibited by § 407(a). In neither case was the State acting as a representative payee in seeking to use the funds as reimbursement for the costs incurred in providing for the beneficiary's care and maintenance." Washington State Department of Social and Health Services v. Guardianship Estate of Keffeler, supra, 537 U.S. 388-89.
"The statute uses the term other legal process far more restrictively, for under the established interpretative canons of noscitur a sociis and ejusdem generis, [w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001); see Gutierrez v. Ada, 528 U.S. 250, 255 (2000) ([W]ords . . . are known by their companions); Jarecki v. G.D. Searle Co., 367 U.S. 303, 307 (1961) (The maxim noscitur a sociis . . . is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress). Thus, other legal process should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability . . . [T]he product of these canons of construction is confirmed by legal guidance in the Commissioner's own interpretation of legal process. The Social Security Administration's Program Operation Manual System (POMS), the publicly available operating instructions for processing Social Security claims, defines `legal process' as used in § 407(a) as `the means by which a court (or agency or official authorized by law) compels compliance with its demand; generally, it is a court order.' POMS GN 02410.001 (2002) . . . Elsewhere in the POMS, the Commissioner defines `legal process' similarly as `any writ, order, summons or other similar process in the nature of garnishment. It may include, but is not limited to, an attachment, writ of execution, income execution order or wage assignment that is issued by . . . [a] court of competent jurisdiction . . . [or a]n authorized official pursuant to an order of a court of competent jurisdiction or pursuant to State or local law . . . [a]nd is directed to a governmental entity.' POMS GN 02410.200 (emphasis added). While these administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect in closing the door on any suggestion that the usual rules of statutory construction should get short shrift for the sake of reading other legal process in abstract breadth. See Skidmore v. Swift Co., 323 U.S. 134, 139-40 (1944); see also United States v. Mead Corp., 533 U.S. 218, 228, 234-35 (2001)." Washington State Department of Social and Health Services v. Guardianship Estate of Keffeler, supra, 537 U.S. 384-86.
This court notes the social security policy manual called the Program Operations Manual System (POMS) is available to the public online. See http://policy.ssa.gov/poms.nsf/aboutpoms. The current POMS provides in relevant part: "Section 459 of the Act contains a specific exception to Section 207 so that title II benefits are subject to legal process brought by an individual in a State court for the enforcement of a legal obligation to provide child support and/or make alimony payments. NOTE: SSI payments are not subject to garnishment." (Emphasis in original.) POMS GN 02410.200. https://secure.ssa.gov/apps 10/poms.nsf/lnx/0202410200!opendocument (Direct link to the section.)
Furthermore, "Section 207 of the Social Security Act ( 42 U.S.C 407) states: `The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the monies paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.' In 1983, subsection (b) was added. It states: `No other provision of law, enacted before, on, or after the date of the enactment of this section, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.'" POMS GN 02410.001. In the policy section of the POMS, subsection C, SSA states: "Section 207 protects the beneficiary's right to receive title II benefits directly and to use them as he/she sees fit by prohibiting the assignment of benefits. Section 1631(d)(1) incorporates section 207 to similarly protect title XVI (SSI) payments. SSA's responsibility for protecting benefits against legal process and assignment ends when the beneficiary is paid. However, once paid, benefits continue to be protected under section 207 as long as they are still identifiable as Social Security benefits or SSI payments (e.g., an SSI check or monies in a bank account where the only payments into the account are from direct deposit of SSI payments). If a beneficiary is ordered to pay his/her benefits to someone else, or his/her benefits are taken by legal process, he/she can use section 207 as a personal defense against such actions." POMS GN 02410.001.
Although there is case law on point from other jurisdictions wherein the courts have allowed SSI benefits to be subject to execution, this court chooses instead to follow the federal law as set forth above. The reason is two-fold. First, there is the question of federal preemption, which may implicate subject matter jurisdiction, and second, state courts usually turn to federal courts when addressing issues of federal law.
"A minority of jurisdictions have interpreted the anti-garnishment provisions contained in 42 U.S.G.A. § 407(a) as only precluding use of the federal government as a collection agency for child support obligations with respect to SSI benefits, but not as preventing an award of child support against a parent whose only source of support is his SSI benefits. See, e.g, Griggs v. Griggs, 435 So.2d 103, 105 (Ala.Civ.Ct.App. 1983) (concluding that SSI benefits were aimed to protect the recipient's family as well as the recipient and were therefore available for consideration in the calculation of child support); Commonwealth ex. rel. Morris v. Morris, 984 S.W.2d 840, 841-42 (Ky. 1999) (in a four-to-three decision holding that state statute permitting courts to include SSI benefits when calculating child support obligations was not preempted by 42 U.S.C.A. § 407(a)): Whitmore v. Kenney, 426 Pa.Super. 233, 626 A.2d 1180, 1184-85 (1993) (finding that 42 U.S.C.A. § 407(a) only precludes actions to compel the federal government to pay child support obligations from future SSI benefits and not from considering SSI benefits when calculating child support), appeal denied, 537 Pa. 621, 641 A.2d 587 (Pa. 1994)." Burns v. Edwards, supra, 367 N.J.Super. 43.
"Federal preemption implicates the court's subject matter jurisdiction." Lewis v. Chelsea G.C.A. Realty Partnership, L.P., 86 Conn.App. 596, 601, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005). "The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution . . . Determining whether Congress has exercised its power to preempt state law is a question of legislative intent . . . [A]bsent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law . . . or where the state law at issue conflicts with federal law, either because it is impossible to comply with both . . . or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives . . ." (Internal quotation marks omitted.) Barbieri v. United Technologies Corp., 255 Conn. 708, 717, 771 A.2d 915 (2001). "[T]he supremacy clause of the federal constitution will require a properly enacted federal law to supersede conflicting state law . . ." State v. Cote, 286 Conn. 603, 622-24, 945 A.2d 412 (2008).
"In general, we look to the federal courts for guidance in resolving issues of federal law. See, e.g., Joo v. Capitol Switch, Inc., 231 Conn. 328, 332-36, 650 A.2d 526 (1994) (considering federal court precedent to interpret federal statute); see also Schnabel v. Tyler, 230 Conn. 735, 743 and n. 4, 646 A.2d 152 (1994) (noting that court looks to Second Circuit precedent when interpreting federal statute)." Turner v. Frowein, 253 Conn. 312, 340-41, 752 A.2d 955 (2000).
Therefore, in keeping with the reasoning above, while the court orders immediate wage withholding to secure payment of the court-ordered child support and alimony orders in this matter consistent with the general mandates of state and federal law, it specifically directs that a wage withholding not be placed directly against the defendant's monthly SSI award to secure those orders.
II.
General Statutes § 46b-86(a) is the statute governing the threshold for modification of alimony orders and sets forth the various grounds upon which such a motion may be granted. General Statutes § 46b-82 also provides in pertinent part: "In determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment." General Statutes § 46b-86(a), governing modification of alimony obligations, provides in relevant part: "Unless and to the extent that the decree [of dissolution] precludes modification . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendent lite may at any time thereafter be continued, set aside, altered or modified by [the] court upon a showing of a substantial change in the circumstances of either party . . ."
"[A]lthough the trial court may consider the same criteria used to determine the initial award without limitation . . . in doing so, its inquiry is necessarily confined to a comparison between the current conditions and the last court order." (Citation omitted; internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994). Ultimately, the court here must decide whether "circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it." Id., 737-38.
A.
As noted, General Statutes § 46b-86 allows modification of alimony orders "upon a showing of a substantial change in the circumstances of either party . . ." As also noted in section I above, the defendant argues that his granting of SSI benefits, and the accompanying determination of disability upon which such a grant is based, constitutes such a substantial change in circumstances. The plaintiff again argues that, despite the SSI determination, no actual change in the defendant's physical and mental condition has occurred and therefore it would be inappropriate to find that a SSI determination alone is a basis for a substantial change in circumstances. Finally, the plaintiff argues that, even should the defendant's SSI receipt status be used as a ground to grant his modification for child support, General Statues § 46b-215b — which deals explicitly only with the determination of child support orders, should not be applied to a modification of the defendant's alimony order.
Once again, the plaintiff relies primarily upon the court's determination of a specific earning capacity at the time of the dissolution and a finding of regular and recurring gift income from his father, Mr. Kenneth Watrous, as the basis for upholding the prior order for alimony. However, as will be seen in sections B and C below, the logical impact to the statutory scheme surrounding orders for child support and alimony of an SSI award/disability determination on the earning capacity of the defendant and changes in the amounts of the regular and recurring gift income provided to the defendant from Mr. Kenneth Watrous render the finding of a substantial change in circumstances needed to sustain a motion for modification of the defendant's alimony order not only possible, but appropriate.
As such, this court once again finds that the granting of SSI benefits to the defendant, and its attendant determination of disability by the United States Social Security Administration, are a substantial change in circumstances as required under Connecticut General Statutes § 46b-86 allowing a modification of his alimony obligation to the plaintiff.
B.
As noted in section I. B. above, Connecticut General Statues § 46b-215b states that "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 (SAGA), parental earning capacity shall not be a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income."
The defendant argues that, relative to his $325 a week child support order, the granting of SSI status, and its attendant impact upon the earning capacity upon which his order is based, renders him entitled to a modification of such order. He contends that, despite the lack of a specific reference in General Statues § 46b-215b to alimony orders, that logic and the establishment of a consistent statutory scheme, requires it be applied to alimony orders as well as those for child support. Once again, the plaintiff argues against such a position, relying among other things, upon the holdings in Lucas v. Lucas, 88 Conn.App. 246, 250, 869 A.2d 239 (2005) and Tevolini v. Tevolini, 66 Conn.App. 16, 30, 783 A.2d 1157 (2001) and the lack of specific application in the statute.
In Berry v. Berry, 88 Conn.App. 674, 685, 870 A.2d 1161 (2005), the court stated that the "loss of employment does not warrant alimony modification unless the moving party also proves that [the party's] earning capacity has changed substantially." In the present case, the court finds that the defendant has demonstration that he is on SSI and as a result, his earning capacity has changed substantially. Although the court's research did not reveal case law directly on point concerning whether a recipient of SSI can be ordered to pay alimony, the court's review of the relevant Connecticut case law leads it to hold that the law applicable to child support in this area should apply equally and consistently to alimony as well. "The statutory provisions governing awards of alimony and child support employ many of the same criteria. See General Statutes §§ 46b-82 through 46b-86. As a result, this court has previously held that alimony and child support are issues that are `entirely interwoven' and require similar treatment. Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993)." Unkelbach v. McNary, 244 Conn. 350, 361, 710 A.2d 717 (1998).
In Zoll v. Zoll, 112 Conn.App. 290, 962 A.2d 871 (2009), however, the Appellate Court affirmed the decision of the trial court which reduced the defendant's alimony obligation from $300 per week to $100 per week because the defendant was diagnosed with leukemia and unable to work full-time. The defendant had filed a motion to terminate his alimony obligation and the trial court found that the defendant demonstrated a substantial change in circumstance but that his income from all sources including social security disability benefits warranted a modification but not a termination and the Appellate Court agreed.
As a further example, in Zahringer v. Zahringer, 262 Conn. 360, 815 A.2d 75 (2003), the plaintiff filed a postjudgment motion to modify the $25,000 per month unallocated alimony and child support awarded to her in the dissolution judgment. Id., 362. The trial court granted the motion and increased the monthly award to $50,000 per month unallocated alimony and child support. Id., 364. The defendant argued that the trial court failed to consider the fact that the plaintiff had access to the funds in a bank account belonging to her parents and that the amount she utilized from the account, $230,000, should have been included in the calculation of the plaintiff's income. The Supreme Court agreed and reversed the decision of the Appellate Court and the trial court and remanded the case for a new hearing. The Court stated that "there is [no] legal distinction in how to treat income between the former spouse who pays support and the former spouse who receives support. In either case, the payments that are made regularly and consistently to one of the former spouses are to be considered by a trial court in setting financial orders . . . There is nothing in [our case law] that limits consideration of such funds to payors or to fact situations involving child support guidelines." (Citation omitted.) Id., 369.
Based on a review of relevant case law, this court determines, despite any prior court's findings relative to the defendant's ability to work, that a logically consistent statutory scheme requires that when a party is determined to be disabled by the Social Security Administration, or a state agency authorized to award disability, that such a determination is binding on the court in the case of alimony orders as well as those for child support. As such, the defendant's prior determined $1,000 a week earning capacity may no longer be used in a determination of an appropriate present and future order for alimony. As noted before, the defendant's actual earnings, as established through evidence and testimony, were zero for this period, so it might appear that an appropriate alimony order in this case, based on earnings, is zero. However, once again in the present case, the testimony revealed that the defendant receives regular and recurring financial assistance from his father.
C.
As noted in section I. C. above, Connecticut case law allows for an order of alimony to be based in part upon regular and recurring gift income received by the obligor. "In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes § 46b-81 (division of marital property), [General Statutes] § 46b-82 (alimony) and [General Statutes] § 46b-84 (child support). All three statutory provisions require consideration of the parties' `amount and sources of income' in determining the appropriate division of property and size of any child support or alimony award." (Internal quotation marks omitted.) Bartel v. Bartel, 98 Conn.App. 706, 711, 911 A.2d 1134 (2006).
Once again, "[o]ur Supreme Court has emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings. See Unkelbach v. McNary, 244 Conn. 350, 360, 710 A.2d 717 (1998) (`our approach has been to interpret the concept of income broadly so as to include in income items that increase the amount of resources available for support purposes'). Adopting a flexible definition of income, the court has explained, ensures that each spouse fulfills his or her continuing duty to support one another and each receives his or her equitable share of the marital assets. See McPhee v. McPhee, 186 Conn. 167, 170, 440 A.2d 274 (1982) (`purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his' [internal quotation marks omitted]). In keeping with this notion, the court has upheld an alimony award that counted as net income `regularly and consistently received gifts, whether in the form of contributions to expenses or otherwise . . . to the extent that they increase the amount of income available for support purposes.' Unkelbach v. McNary, supra, 360-61." Bartel v. Bartel, 98 Conn.App. 706, 712, 911 A.2d 1134 (2006). In considering contributions to an obligor's living expenses from a spouse, domestic partner or parent, "`[w]here the past gratuities have been made on a regular basis . . . the court may reasonably assume that those contributions will continue. If they should terminate, any . . . award may be modified.' (Internal quotation marks omitted.) Unkelbach v. McNary, supra, 244 Conn. 361." Bartel v. Bartel, supra, 98 Conn.App. 713 n. 4.
"Relevant to the present claim concerning alimony, § 46b-82(a) provides in relevant part: `In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.' General Statutes § 46b-82(a)." Picton v. Picton, 111 Conn.App. 143, 157-58, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009).
Again, as stated directly above, "[o]ur Supreme Court has emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings . . . Adopting a flexible definition of income, the court has explained, ensures that each spouse fulfills his or her continuing duty to support one another and each receives his or her equitable share of the marital assets . . . In keeping with this notion, the court has upheld an alimony award that counted as net income regularly and consistently received gifts, whether in the form of contributions to expenses or otherwise . . . to the extent that they increase the amount of income available for support purposes.' (Citations omitted; internal quotation marks omitted.) Bartel v. Bartel, supra, 98 Conn.App. 712." Picton v. Picton, supra, 111 Conn.App. 158.
"In its memorandum of decision [in Picton], the court found that the plaintiff's income had varied from year to year, the plaintiff having earned more than $300,000 in some years and as little as $20,000 in other years. The court accepted as true the plaintiff's affidavit stating that he had an average net income of $1,485.85 per week. As to the defendant, the court found that she held `two part-time jobs with a total net weekly income of $410.53.' In addition to these findings regarding employment income, the court also found that the defendant's mother `gave the defendant $10,000 or $11,000 each year . . . [and that] [t]here was evidence that the defendant's mother intend[ed] to continue to give . . . $11,000 per year to the defendant.' Following these and other findings, the court fashioned the financial orders in this case, including ordering the plaintiff to `pay to the defendant the sum of $400 per week as alimony.' It also ordered that the alimony would `terminate upon the death of either party, the defendant's remarriage or the passage of seven years, whichever occur[red] first.' This alimony award was `non-modifiable as to term only.'" Picton v. Picton, supra, 111 Conn.App. 158-59.
"The plaintiff filed a motion for articulation, asking, among other things, that the court articulate whether it considered the $11,000 gifts from the defendant's mother to be income for purposes of the financial orders. After the court denied the plaintiff's motion, the plaintiff filed a motion for review with this court. Upon granting in part the plaintiff's motion for review, this court directed the trial court to articulate `whether it considered the $11,000 given each year by the defendant's mother to the defendant to be income for purposes of the entry of financial orders in this case.' The trial court responded: `I considered the $11,000 given each year by the defendant's mother to be a regularly recurring gift, which would continue in the future as income to the defendant.'" Picton v. Picton, supra, 111 Conn.App. 159. "On the basis of the court's memorandum of decision and its articulation in this case, it is clear that the court did consider as income to the defendant the $11,000 yearly gift from her mother when it fashioned the alimony award. Accordingly, the plaintiffs claim that the court failed to consider these gifts as income to the defendant is without merit." Picton v. Picton, supra, 111 Conn.App. 159.
As noted previously in section I. C. above, during the lengthy hearings before this court the defendant's father testified that his son gives him the money he receives from SSI and SAGA benefits and he uses that money to pay the expenses for rent and utilities and gives his son the small amount left over to use for gas and small incidental expenses. When there are additional month expenses he pays them for his son. (Transcript dated March 10, 2008, pp. 142, 144, 150, and 152.) The court notes that the son lives in a home owned by his father and the father could not recall the amount of the mortgage on the home because he owns six homes. ( Id., 151 and 144.) The defendant's father also testified that he has paid attorneys fees to the defendant's attorneys and $8,900 to keep his son from going to jail on a contempt motion because he fears for his son's health and well being. (Transcript of October 2, 2008, pp. 152, 160, 176, and 188.) The defendant's father further testified that he considered the monthly financial assistance he provided his son to be loans but stated that he forgives any loans he made to his son. ( Id., 160.) The defendant's father also stated that he would not pay any more of the plaintiff's attorneys fees and told Judge Swienton he was "not going to be extorted by these courts." ( Id., 151.)
Again, the testimony elicited on the issue of the specific amounts of such gift income, along with the various financial affidavits submitted by the defendant throughout the case, were at best muddled, being at times contradictory. While it is clear from the prior record and prior findings in this case that Mr. Kenneth Watrous has, in the past, provided his son with substantial regular and recurring gift income, what is also clear from his testimony is that he has substantially reduced the frequency and amounts of such gifts.
Again as noted above, wading through the testimony and evidence provided, and using its best efforts to parse the relevant evidence and determine an accurate amount of regular and recurring gift income, the court found that throughout the period from the filing of his motion to the present, the defendant had received, on average, approximately $110 a month (or $25 a week on average) in regular and recurring gift income from his father, Mr. Kenneth Watrous.
Also as noted above, during final argument, counsel for the defendant offered that his client pay the sum of $20 per week towards any arrears found by the court in this matter. Once again, when taken alongside statements made by the defendant's father, the court finds it reasonable to determine that such a sum bolsters the court's finding of $110 a month (or $25 a week on average) as the amount of regular and recurring gift income upon which the defendant may rely to pay any alimony order set by this court.
When setting or modifying an alimony order, the court must turn to the relevant factors required for consideration as enumerated under General Statutes §§ 46b-82(a) and 46b-86(b) (among them length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment, etc.). This court has done so. "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn.App. 798, 800-01, 930 A.2d 811 (2007). However, the court no longer has a clear cut set of numeric guidelines upon which to base its order as it does when determining child support orders. It is also not in as good a position as the trial court in spying out the full mosaic of orders that supported the trial court's logic in fashioning an alimony order. Therefore, such deference to the orders of the dissolution trial court as can be reasonably accomplished while still obeying other statutory and case law imposed dictates seems not only wise, but desired.
This court has found that the total amount of regular and recurring financial resources (as well as assets available from which to pay support and alimony) available to the defendant, based on all the testimony and evidence presented, represents at most $25 a week to satisfy all combined orders. This court has ordered that $3 of that sum be used weekly to satisfy the defendant's ongoing support obligation and any prior accumulated support arrears. That leaves the court with $22, under the defendant's present financial circumstances, left to assign to an orders for current alimony and arrears.
At the time of the initial dissolution judgment, the $325 a week in alimony ordered by the court represented roughly 87% of the defendant's total combined order of $375 a week. In keeping with the intent of the original orders of the court to the best of its present ability, this court orders that the defendant pay to the plaintiff the sum of $20 a week in current alimony and the sum of $2 a week in alimony arrears — such arrears to be calculated by Support Enforcement Services consistent with the findings of this court regarding contempt and retroactivity (this combined sum of $22 a week thus representing 88% of the total combined orders now in force for the payment of alimony and child support in this case).
Finally, again the defendant argues for the termination of his alimony obligation based upon the grounds he articulates to support his modification. In the interest of clarity, the court will once again briefly address this argument. While the court is persuaded, for the above articulated reasons, that the substantial change in circumstances necessary to grant a modification in this case has been proven, it is not convinced that such a change stemming from the defendant's present SSI status is necessarily permanent, nor given the findings of the court relative to the regular and recurring gift income available to the defendant, that he has no source of income whatsoever with which to pay an alimony order. As such, a modification, not a termination, of the defendant's current support obligation is appropriate in this case. No other changes to the duration, or permissible grounds for future modifications of alimony are ordered.
D.
Even though alimony orders lack the strict applicability of the specific expressed and enumerated deviation guidelines found in the Connecticut Child Support Guidelines, this court, in the interest of clarity and thoroughness, takes this opportunity to clarify that it will also be denying any further upward deviation requested by the plaintiff from the combined sum of $20 a week in current alimony and $2 a week in alimony arrears based upon arguments arising out of either the minor child's best interests or other equitable factors. The court does this, not because it is not sympathetic to those arguments, but because it finds itself in a position where it does not feel the law and the facts allow it to order alimony above the amounts ordered, based upon the defendant's present circumstances, income and assets.
E.
Having granted the defendant's motion for modification and set a new current alimony and alimony arrearage order, the court now once again turns to the issue of the retroactivity — the appropriate effective date for the granting of the motion, the setting of new orders and the determination of arrears under the old and new orders. The defendant's motion requesting a modification of alimony, as well as current support, were, in fact one in the same motion. The consolidated motion was filed and served in the same manner and at the same time, and evidence, argument, briefing schedules and the decision timetable for the motion was identical to the process outlined in section I. E. of this decision above. As such, the same rules and reasoning apply to this court's determination of an appropriate date for the granting of the motion.
As before, this court, unable to grant the retroactivity requested by the defendant for the above noted reasons, concludes that, following all of the statutory dictates, applicable case law and relevant equitable factors, that the best interests of justice are not served in this matter by making the orders effective at either the date of the filing of the motion or its first appearance in court (on one end of the spectrum) nor on the date of the court's final decision (on the other). Instead, the court concludes that the law allows the defendant's motion be granted, and his orders for alimony and arrears be modified, effective the last date the matter was fully concluded in argument — December 10, 2009 (effectively the last date a brief was filed in this matter — the parties having forgone their ability to file briefs beyond that date). As such, any arrears calculated by Support Enforcement should run at the $325 a week rate up to that date and at the new $20 a week rate since that date.
F.
Again, as noted above, the parties spent a considerable amount of time debating the appropriateness of an order for immediate wage withholding in this matter. As also mentioned, while there may have been some disconnect between their two positions on the matter, the court, in responding to their inquiry, once again wishes to make clear its orders relative to whether it is ordering direct garnishment of the defendant's SSI benefits to secure its orders for alimony and arrears.
Once more, although there is case law on point from other jurisdictions wherein the courts have allowed SSI benefits to be subject to execution, this court chooses instead to follow the federal law as set forth above for the same two-fold reasons (the question of federal preemption, which may implicate subject matter jurisdiction, and second, state courts usually turn to federal courts when addressing issues of federal law). Thus, the orders of this court are not subject to wage execution directly from the defendant's SSI award.
III.
"Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. (Internal quotation marks omitted.) Edmond v. Foisey, 111 Conn.App. 760, 769, 961 A.2d 441 (2008). Nonetheless, [n]on-compliance alone will not support a judgment of contempt. (Internal quotation marks omitted.) Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful . . . A judgment of civil contempt is improper if the contemnor, through no fault of his own, was unable to obey the court's order." (Citation omitted; internal quotation marks omitted.) Kennedy v. Kennedy, 114 Conn.App. 143, 148, 968 A.2d 1002 (2009).
"`[A]n order issued by a court of competent jurisdiction must be obeyed by the parties until it is reversed by orderly and proper proceedings . . . [A] party has the duty to obey a court order however erroneous the action of the court may be . . . Consistent with that conclusion . . . a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed . . . and . . . there is no privilege to disobey a court's order because the alleged contemnor believes that it is invalid.' (Citations omitted; internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 425-26, 870 A.2d 1039 (2005), citing Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985); see also Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967)." Zoll v. Zoll, 112 Conn.App. 290, 304, 962 A.2d 871 (2009). The burden is on alleged contemnor "[to] establish that he cannot comply, or was unable to do so." Sablosky v. Sablosky, 258 Conn. 713, 723, 784 A.2d 890 (2001).
A.
In this matter the defendant has been under a court order to pay $325 a week in alimony and $50 a week in child support since the dissolution date of August 26, 2006. The plaintiff brought motions #248, 264.5, 271 and 324 alleging non-payment by the defendant of those court orders and seeking payment of all sums owed plus attorneys fees. The defendant argues that, owing to his SSI award, finding and granting of disability status, he has had no ability to pay the court's orders going back to at least January 10, 2007 (the date to which he was granted retroactive SSI payments). He therefore contends that, despite the fact that he was subject to the orders of the court, that they were valid and unambiguous and that he had knowledge of the orders, he cannot be found in contempt because his inability to pay was not though his own fault and therefore cannot be found to constitute wilful disregard of the orders of the court.
The plaintiff argued that, as noted above, the defendant was not qualified for a modification of his alimony and support orders as he was possessed of the very same ability to pay those orders that was found on the date of the dissolution. However, this court has ruled in sections I and II of this memorandum of decision that the defendant was in fact entitled to his modification as he was no longer legally possessed of the same ability to pay his orders for alimony and support as he was at the time of the dissolution. Therefore, it logically follows that the defendant is correct in so far as his ability to pay the full $325 a week in alimony and $50 a week in child support no longer existed and so his inability to pay those full sums cannot be considered wilful disregard of the orders of the court.
However, this court also found, based on the documentary and testimonial evidence presented at the many days of hearing conducted in this matter, that the defendant did have regular and recurring gift income from his father, Mr. Kenneth Watrous, in the amount of $110 a month. This sum was found to be provided by Mr. Kenneth Watrous to the defendant throughout the total period of non-payment claimed by the plaintiff in her motions. In fact, this sum and the sum of $20 a week which was also offered as payment against his arrears obligations by the defendant in October of 2008, formed the basis for the present weekly orders of the court for child support, alimony and arrears as outlined in sections I and II above,
The defendant may have, in his opinion, concluded that his motion for modification of child support and alimony would be granted and that his orders would be terminated. However, throughout this period he was plainly subject to the orders of the court; those orders were valid and unambiguous and he clearly had knowledge of them. Further, in keeping with the holding in State v. Wright, 273 Conn. 418, 425-26, 870 A.2d 1039 (2005) and the other cases cited above, the defendant had a duty throughout this entire period to do everything in his ability to pay those orders until such time as they were modified by the court.
Instead, rather than pay such sums as were available to him, however nominal, towards the current orders, the defendant made the fundamental error of assuming that because he might be unable to pay the full amount of the orders, that this somehow relived him of his obligation to pay anything against those orders. Under the law of this state this is clearly not the case. Thus, the defendant's inability to make payments on his orders by dedicating the $110 a month of regular and recurring gift income he had at his disposal through this period toward that purpose was done through his own fault and constitutes a wilful disregard of the orders of the court.
Therefore, while the facts of this case clearly do not support a finding of contempt for non-payment of the full $375 a week in combined court-ordered alimony and support subsequent to the defendant's January 10, 2007 SSI award, this court does find the defendant in contempt for his failure to make voluntary payments on his court orders commensurate with his ability during the period.
B.
The court now turns to the proper amount of the purge the defendant must pay to free himself of the court's finding of contempt and the circumstances under which the purge is to be paid. In their motions and throughout argument, the plaintiff and the defendant disagreed about the amounts and periods of non-payment of the court-ordered alimony and child support. What is clear is that the defendant made no regular voluntary payments towards those obligations from at least January of 2007 until the present. Further, it is clear that the court found the defendant in contempt on March 23, 2007 for non-payment of alimony and child support stemming from an October 2006 motion for contempt. A sum was paid against that contempt finding pursuant to an order of the court in January of 2008. While, as will be seen below, sums may also still be owed against that contempt, it is clear that no regular payments towards the subsequently due alimony and child support have been made since the time of that finding.
Thus, as a finding of the proper purge amount accrued since the commencement of the plaintiff's present motions for contempt, this court finds that sum to be $2,970 ($110 per month for each of the 27 months from the start of April 2007 to the end of June 2009) minus the total of any voluntary payments made by the defendant during that period (the defendant having made at least one such payment in court during these proceedings). The defendant may not count any involuntary payments, such as federal or state income tax intercepts, made during the period against the amount of the purge.
The court stays an order remanding the defendant to the custody of the Commissioner of Corrections until July 10, 2009 so the defendant may pay the full amount of his court-ordered purge voluntarily in order to avoid incarceration. In so doing, the court also finds, consistent with the holding in Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984), that the defendant has presently available to him the necessary funds to pay the purge set by the court. As a basis for this finding, the court relies, in part, upon the defendant's offer of $20 a week against any court found arrears made on October 10, 2008. The court is confident that the defendant has set aside at least such a sum since that date and very likely more. This would enable the defendant to pay the amount of the purge within the timeframe set by the court. The plaintiff's motions for contempt are thus continued to 3 P.M. on Friday July 10, 2009 for payment of the court-ordered purge.
C.
The court now turns to the subject of any sums that may still be owed against any prior court findings of contempt for non-payment of child support, alimony or attorneys fees. While, through the present motions to modify child support and alimony, the defendant has demonstrated a substantial change in circumstances and has thus had his motions granted and his orders reduced, this does not erase the amount of the defendant's arrears for child support and alimony nor does it liquidate the amount the defendant owes the plaintiff for attorney fees that were outstanding prior to August 8, 2007.
Further, while the court has set an amount the defendant should pay toward the now existing arrearages for child support and alimony, any unpaid amounts stemming from a finding by a prior court of contempt remain validly due. This court does not have subject matter jurisdiction to change what has already transpired and the orders that entered previously were neither vague nor ambiguous. The court will take up the issue of whether any such sums remain outstanding and how said sums will be paid at the hearing on Friday, July 10, 2009, or at a later date upon further motion of the plaintiff, as she desires.
D.
Finally, although it may be apparent from the orders of the court in sections A, B and C above, for the sake of clarity the court explicitly denies the defendant's oral motion to dismiss the plaintiff's motions for contempt and attorneys fees upon the grounds and reasoning as set forth above.
IV.
"Once a contempt has been found, § 46b-87 establishes a trial court's power to sanction a non-complying party through the award of attorneys fees . . . [T]hat sanction may be imposed without balancing the parties' respective financial abilities." Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). "[B]ecause the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the [party's] behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award." Esposito v. Esposito, 71 Conn.App. 744, 750, 804 A.2d 846 (2002).
Through her motions for attorneys fees the plaintiff asks for the award of $20,300.78 in attorneys fees and costs for the prosecution of her motions from April 2007 to the present. The court, in its discretion, and after consideration of all the relevant statutory factors, declines to award such a sum however meritorious the plaintiff's claim may be, owing largely to the defendant's manifest inability to pay such a sum.
However, the clear contemptuous conduct of the defendant, who failed to make any voluntary payments, however nominal, against the orders despite being possessed of a limited ability to pay, merits the award of some sum to the plaintiff for her counsel fees for the prosecution of her motions however modest. Therefore, the court, in its discretion and best judgment of the defendant's ability to pay any sums awarded to the plaintiff, orders that the defendant pay to the plaintiff the sum of $500 in attorneys fees within 90 days of this decision.
V.
In summary, based on the facts in this case and in consideration of the applicable law, the court makes the following findings and rulings:
The court grants the defendant's motion for modification of child support and modifies his ongoing child support obligation to $2.50 per week in current support and $0.50 a week on his child support arrears.
The court grants the defendant's motion for modification of alimony and modifies his ongoing alimony obligation to $20 per week in current support and $2 a week on his alimony arrears.
The court makes these modifications effective December 10, 2008 and finds an arrears for both child support and alimony consistent with the sums due and owing under the dissolution orders of $325 a week in alimony and $50 a week in child support from the period of the date of dissolution to December 10, 2008, minus any amounts paid during that period. More recent arrears are to be calculated based on the modified figures cited above.
The court orders immediate wage withholding to secure payment of the court-ordered child support and alimony orders consistent with the mandates of state and federal law, but specifically directs that a wage withholding not be placed directly against the defendant's monthly SSI award.
The court grants the plaintiff's motions and finds the defendant in contempt for wilful non-payment of the sum of $110 a month towards his combined child support and alimony obligations for the period from April 2007 until present, minus any voluntary payments against such obligations made during that period. The purge the defendant must pay consistent with the court's finding of contempt in this matter is set in that amount.
The court orders that the defendant pay the above purge in full by 3 P.M. on July 10, 2009 or face incarceration for non-payment of the purge. The court continues the plaintiff's motions for contempt to that date to monitor compliance with the court's orders.
The court grants the plaintiff's motion and awards the plaintiff attorneys fees for the prosecution of her motions in the amount of $500, which must be paid to her by the defendant within 90 days of this decision.