Opinion
No. FA91-0048287
May 29, 2004
MEMORANDUM OF DECISION
The following motions are pending before this court: the defendant father's motion to modify seeking a decrease in the support order (#140); the plaintiff's contempt citation (#141), which includes a demand for attorneys fees; and a contempt citation filed by the support enforcement division (#142). The motions were all contested and heard over several days of testimony and argument.
The plaintiff mother and defendant father intermarried at Ashford on August 26, 1989. There are two children: Alexandria Sofia Burns, born on December 11, 1988, before the parents married but presumed issue of the marriage; and Megan Elizabeth Burns, born December 14, 1989.
The marriage was dissolved on March 30, 1992. The disputes of the parties were settled via a written separation agreement which was incorporated into the dissolution judgment by the court, Jackaway, J. The agreement vested the parties with joint custody of the minor children with primary residence with the plaintiff mother. The defendant father was ordered to pay $80.00 per week per child for support. The father was ordered to provide life insurance on his own life in an amount of at least $10,000 naming the children as irrevocable beneficiaries until the youngest reaches majority. He was also required to maintain medical and dental insurance through his employment. The parties were to equally share all health costs not covered by insurance. Although the file contains no child support guidelines worksheet relating to the date of the dissolution hearing, both parties filed financial affidavits. The plaintiff mother disclosed income from part-time work for Salvation Army yielding gross income of $66.00 per week, with a net of $60.48. The defendant father reported income of $625.00 gross and $432.31 net per week as a produce manager at Michael's Market in Jewett City.
The agreement did not survive for long. By August 1992 the plaintiff had applied for IV-D services to enlist Support Enforcement's help in enforcing the child support order. A contempt citation was served on the defendant and he responded by filing a motion to modify the support order. At a hearing on November 18, 1992, the court, Ginsberg, F.S.M, found that the defendant had lost his job and therefore recommended modification of the child support order to $20.00 per week per child plus $20.00 per week on the arrearage, making a payable total of 60.00 per week. The Superior Court, Klaczak, J. approved the recommendation, on November 30, 1992.
At the time, General Statutes § 46b-84 provided that modification of a child support order in a dissolution judgment in a IV-D case was to be heard by a Family Support Magistrate. If the motion was granted, the modification was to be submitted to a Superior Court Judge for approval. Subsequently, the statute was amended to provide for modification by the Family Support Magistrate in such cases.
In 1994, the plaintiff mother moved to increase the child support order. The motion was granted and according to the file record, by agreement, the order was increased to $53.00 per child per week, totaling $106.00 plus $14.00 per week on the arrearage. Again the file does not contain a child support guidelines worksheet, although the written finding specifies "conforms to guidelines." The financial affidavits and court findings establish that the order was based on net income of $180.00 to the mother and $345.00 per week to the father.
In 2001, the defendant father moved to again modify the judgment. The defendant father was represented by his present attorney while the plaintiff was pro se. A written stipulation was submitted by which primary residence of Alexandria, the oldest daughter, was changed to the father. Regarding child support, the agreement stated: "Father will continue to pay child support per existing court order, which is a deviation from the Guidelines necessary for coordination of total family support and agreed to by both parties." The agreement also modified orders regarding health care expenses. Henceforth, the plaintiff would maintain insurance coverage for Alexandria through the Husky program "if she is able to do so." Otherwise, the defendant would be responsible for 100% of Alexandria's health costs except for counseling arranged by the mother. Finally, the written agreement included a clause that states: "Although either party may return the matter to Court any time either feels there is a substantial change in circumstances which is in the best interests of the minor child (sic), Mother specifically reserves the right to request an in-court review of the current orders within six months, before the start of the new school year." The agreement was "approved and accepted" by the court, Graziani, J., on March 12, 2001. The present motions filed in late 2003 followed.
I
This court issued orders determining both contempt citations and the request for counsel fees from the bench on February 17, 2004. Rather than further articulating those decisions, the court will append the pertinent portion of the transcript and hereby incorporates it into this memorandum of decision:
THE COURT: All right. Where do I start? I guess let me start with the issue of attorneys fees. No. Probably, I should start with the contempt because that somewhat affects what I'm going to do with the attorneys fees. So let me start with that.
And I find that he is in contempt of Court. Let me just get that on the table right away. He had clear orders. He failed to comply with them. I don't feel he had cause to fail to comply with the orders between April and August or whenever it was. But I very deliberately — and I think, you know, again, I listened to the tape over again to make sure I understood exactly what was said.
And I think that Mr. Burns, again, with all due respect, whether counsel understood it or fully got the wording or not, I think Mr. Burns clearly understood it. And I think at the end of the last hearing I tried to make sure that Mr. Burns clearly understood it, and it was important because it weighed not only on giving him an opportunity to prove either that he would comply or not comply with the Court order specifically as it was rendered, but I think it goes on how much good faith the Court could ascribe to his previous conduct.
Part of Mr. Burns' argument at the last Court hearing was in a sense, well, I thought I was entitled to the modification or I thought the modification was going to happen or I thought we had already modified it or I thought we had an agreement or all kinds of I thought this, I thought that, I thought the other thing. And so he withheld payments, which he was not entitled to do. CT Page 9146
And the question in my mind, I think at that point was, I don't think I had any question in my mind that he was not entitled to withhold those payments, but the question was, was it willful or was it a true misunderstanding because I think he had a — claim that somehow through all that he had some kind of an understanding that maybe Ms. Burns had at least tacitly agreed to it, although the written agreement that was put into the record had written all over it her disclaiming it and saying to Support Enforcement don't do this because I haven't agreed to it. Yet Mr. Burns somehow maybe thought he had an agreement.
So I said okay. Let's give Mr. Burns the benefit of the doubt on that because to be in contempt he has to be in willful noncompliance, not just noncompliance. The noncompliance was clear. The willfulness, I thought, perhaps, there was an element that would suggest he had some kind of understanding that he didn't have to do this, and that that was it.
So on December I said, well, let's put it to a test. And the test is let me issue a clear, unequivocal order and see how he does, and it wasn't blind man's bluff or anything. I set it forth for him. I said to him directly, you know, and he understood it clearly, which is from here on out until the next court date — I don't know if this is going to get modified or not but right now this is the order and it's a weekly order and you pay it. And he understood that.
There's no question in my mind from his comments today that he understood it. You can put whatever blush you want, but he understood it; and he didn't comply or at least he can't prove he's in compliance. And he has the burden of proof on that issue. And in the absence of any documentation that proves it to the contrary, I'm going to accept as credible Mr. Beffa-Negrini's testimony that four payments came in on or about January 15th or were processed on January 15th and he went five weeks right after walking out of Court without paying it.
And I think, you know, with regard to this contempt, it was the — the burden was clearly on him to prove some good faith and to prove that there was really some kind of misunderstanding on his part that took him out of the onus of willfulness as opposed to what now appears to me to be the case. And what Attorney Cardin has alleged all along is that Mr. Burns manipulates the situation to suit his position, and that's now what it appears to me. And therefore, I find that his failure to comply with the orders since December 27th until January 15th was willful, and I find also because of his conduct on that date, that his failure to comply with the order for substantial periods of time prior to August was also willful; and for that reason he is found in contempt of Court.
Now, what to do about the contempt, I made the finding at the last court date that because he made some substantial payments after the period of nonpayment that he had mitigated the contempt; and he has, again, somewhat mitigated the contempt by those checks that did come in on January 15th. And if he made the payment that he alleges to have made and put in the mail, that would somewhat mitigate the contempt.
So what I'm saying is he is in contempt of Court. It's perhaps not the world's worst contempt, but it's still a contempt; and I have to take into account what he did to mitigate and what he didn't do to mitigate it.
So having made that finding, that puts counsel fees on the table because under the statutory provision of awarding counsel fees to the party on — a contempt, I have the authority to order counsel fees. So defense counsel now raises the question, well, was it really necessary because Support Enforcement was there, and Support Enforcement was bringing a contempt.
Well, I view the following: In this country, at least last I heard, we have a constitutional right to counsel. I guess if you're in Guantanamo Bay, maybe you don't; but most of us still have a right to counsel. And it's one of our cherished constitutional rights in this country, right to counsel. And in a child support case, it doesn't say only that the obligor has a right to counsel. All parties have a right to counsel. And if the plaintiff chooses to retain her own lawyer to assist in pursuing the contempt — quite frankly, whether it's Attorney Cardin's contempt or whether it's Support Enforcement's contempt — she has a right to counsel. It's as simple as that. She has a constitutional right to counsel and if counsel exercises efforts in pursuing the contempt whether it's hers and she had her own contempt on this case and the timing — I think she's right on the timing.
She filed before the State, but I don't think it really makes any difference or whether she just piggybacks on Support Enforcement's contempt — I mean if you want to talk about duplicate of efforts, maybe a question of the costs when there was another contempt coming down of the marshal's fee, that might be duplicate of efforts.
But I would never phrase counsel's participation in the case as duplicate of Support Enforcement's efforts because they have different functions and different responsibilities. Attorney Cardin's responsibility is solely to her client. Mr. Beffa-Negrini's responsibility is to the 4-D support system, which somewhat vicariously in a support enforcement case often means they come down essentially on the side of the noncustodial — of the custodial parent, but not always.
They have a different function. They have a function of getting the proper — facilitating the matter being brought before the Court for a fair hearing. They're not advocates. They're advocates for their own agency's position, not necessarily for either party's. And in modification role, you see that very clearly because they struggle with fairly putting it before the Court and not coming down on either side. They do a lot of modifications on behalf the obligors in this Court. So they have different functions, and I think the plaintiff is entitled to counsel just as a matter of constitutional right. And being entitled to counsel and the respondent having been found in contempt, the Court is entitled to access counsel fees.
So now we get to how much. And the how much, it's been a number of hearings. Some of them have been lengthy. I think counsel set forth, pretty comprehensively what she did, as I indicated to her what she needed to do I think on the earlier court date; and she's now done it. And she made, I think, somewhat of an arbitrary decision, but arbitrary because it's a difficult one to sort out where she clearly was — also assisting her client on the motion to modify as to how she was going to allocate that money.
You know, our Supreme Court has talked about carefully crafted mosaics — inextricably interwoven in modification and contempt; and then when you do counsel fees, somehow you have to separate and sort out. And I, you know, just from hearing many of these cases, I think that the standard that Attorney Cardin used was reasonable. Whether it's exactly mathematically accurate or not, I don't think she can be held to that standard. I think it's a reasonable allocation.
So I'm going to find the attorneys fees that are requested as reasonable, and I award counsel fees to the plaintiff in the amount of one thousand three hundred dollars. And I'm going to order them to be paid by the respondent, and we're going to set a date when I see where we're going with the rest of this case.
With regard to the rest of it, I am somewhat empathetic with Attorney Cardin's — I guess to put it bluntly — suspicion regarding the alleged payment that's in the mail; but I note that Mr. Beffa-Negrini is more inclined to say well, let's see if that payment comes through. And since I'm still somewhat in the mode of allowing any reasonable doubt, I will give time for that payment to clear.
I do agree with Attorney Cardin that the rest of it ought to be paid. I'll give a short period of time for that to happen, and I have a little bit of an inclination to consider a performance bond as well except that the last three payments have come through income withholding; and I guess I don't know how well we're going to do on the income withholding. I think you already indicated his employment continues to be less than a hundred percent regular. Are we still looking at seasonality in the employment?
MS. DREILINGER: Yes, sir.
THE COURT: Well, I appreciate the candor of your answer, but the answer suggests that probably there ought to be a performance bond.
Mr. Beffa-Negrini, do you have a — this was Attorney Cardin's request. Do you have an opinion on this?
MR. BEFFA-NEGRINI: Well, if it is true that his payments may not be coming out of pay on a regular basis, there appears to be some propensity for payments not being paid regular on his own. I would say a performance bond may be appropriate.
THE COURT: All right. Why don't I do this? I will order a performance bond, and I'll order one in somewhat of a lower amount than was requested. And what I usually do in this kind of situation to give him an opportunity — because he's going to have to deal with the attorneys fees and some payments on the remaining arrearage as well — I will order him to post a seven hundred dollar performance bond. He has to pay the one thousand three hundred in counsel fees and the balance of the plaintiff's arrearage; and I'm thinking March 30th gives him about six weeks. If he has to borrow some of that, that should give him time to get to a bank — March 30th, 2004 — for monitoring purposes. Attorney Cardin, my thought would be to have the full payment go to Support Enforcement, and they can distribute it. Mr. Beffa-Negrini, any problem with that?
MR. BEFFA-NEGRINI: In reference to attorneys fees?
THE COURT: In reference to the whole package. He pays two thousand plus the balance of the arrearage to Support Enforcement. Seven hundred is to be held as a performance bond, thirteen hundred go to counsel fees, and the balance — the remainder goes to the remaining arrearage, which is again if that four twenty-four comes through it's going to be relatively small on the arrearage and if he keeps up with the weeklies.
MR. BEFFA-NEGRINI: Okay. We'll do it.
THE COURT: Okay. I'm also going to enter a — because with all due respect to the administrative add-on — I think this is a Court, and we should have Court orders. I'm going to order twenty-four dollars a week on the arrearage while we still have one — and that will go into abeyance at any time that he is paid in full. It will be automatically in effect at any time that he is in arrears at all. That's not just delinquent. That's any arrears.
So for right now, the payable order is one thirty. When the arrearage is paid down to zero, it's 106, subject to the next step of the proceeding, which is the motion to modify, and maybe I should have held on it. I'll tell you what, let me just see where we come out on the motion to modify before I set an arrearage payment order.
MS. JOHNSON-CARDIN: Your Honor, I just have one question about the full payment towards Support Enforcement. I just want to make sure that my client's attorneys fees aren't going to be able to be used by Mr. Burns' child support. I, from past experiences in other cases, I know payments made to Support Enforcement sometimes they have to apply it towards arrearages. I just don't want to see that happen.
THE COURT: Yeah, you're right. Well, first of all, if that happens, he would be in noncompliance with the order because the order is to pay the arrearage down to zero by that court date. So if he owes anything and they've allocated money to child support, then he will be delinquent on the remainder of the lump-sum order. So ultimately — but I suppose what I generally do in this circumstance is — and I will address Mr. Burns to this effect — you're requested to make the lump-sum payments to the Support Enforcement office, not send it to the post office box. So that has to go to the Support Enforcement office and be labeled as a lump-sum payment; and then once if that's done hopefully it would be allocated properly as I've indicated. Am I correct on that, Mr. Beffa-Negrini?
MR. BEFFA-NEGRINI: Yes, Your —
THE COURT: Assuming he pays it to you, you would allocate it the way I've ordered; right?
MR. BEFFA-NEGRINI: Your Honor, being candid with the Court, we could allocate it to this account only, not to a particular disposition. However, if the defendant's balance is zero with the support, counsel's — account — would be the only one to apply money.
THE COURT: Well, I guess what I'm saying if I order him to pay a two thousand dollar lump sum and I've said that that two thousand dollar lump sum goes seven hundred due a performance bond —
MR. BEFFA-NEGRINI: Right.
THE COURT: — and thirteen hundred to counsel fees, why would Support Enforcement have any authority to do anything else with the money? I understand if it goes to the black hole, you know, the P.O. box that you don't have any control over it; but if he does what I just directed him to do, which is brings two thousand dollars to the Support Enforcement office —
MR. BEFFA-NEGRINI: Right.
THE COURT: — I've accounted to that money. I've allocated what happens to that money.
MR. BEFFA-NEGRINI: Okay. That's something I'm sure we could take care of. CT Page 9153
II
The plaintiff opposes modification of the child support order. It is her contention that the defendant has failed to prove a substantial change of circumstances from the 2001 agreement. Furthermore, the plaintiff argues that by accepting the parties' 2001 agreement that the support order would remain the same not withstanding the change of custody of one child the court de facto deviated from the child support guidelines thereby precluding the plaintiff from claiming that basis for modification. The plaintiff also points to language in the agreement which purports to set forth grounds for deviation from the child support guidelines. The plaintiff also disputes the defendant's claim that the 2001 orders were "without prejudice" such that the defendant is entitled to a review of the orders some two years later. Finally, the plaintiff claims that the defendant's motion does not articulate cause for the court to modify the order.
The defendant's motion pleads as the sole basis for modification a substantial change of circumstances. The change claimed is articulated thus: ". . . the parties' daughter Alexandria now spends virtually no time with her mother, and the Defendant Father is now responsible for the support of another qualified child, as defined in the Connecticut Child Support Guidelines." The plaintiff insists that the defendant is narrowly limited to the literal language in the motion, and objects to any other evidence of change of circumstances.
The plaintiff is correct that the second clause of the defendant's claim, namely that the defendant has another qualified child, is not grounds for modification of the order. The child support guidelines specifically preclude consideration of an afterborn qualified child in the context of a downward modification. A qualified child deduction may only be utilized when "[a]n initial child support award is being established, or a parent is defending against a proposed modification of an existing child support award." Regs., Conn. State Agencies, § 46b-215a-2a-(e)(1)(B).
However, the first clause of the claim, when read in the context of the motion as a whole, sets forth a substantial change of circumstances. The split custody arrangements, including primary residence of Alexandria with the defendant father are clearly set forth in paragraph 2 of the motion. The change of primary residence was argued in the brief and orally as cause to modify the order. It is true that the claim is muddied by the parties' respective interpretation of the ramifications of the 2001 agreement and that consequently the claim is inartfully pleaded. Nonetheless, the court finds that in context, the defendant has sufficiently placed the plaintiff on notice of his basis for seeking modification of the child support order.
III
The statutory provision governing postjudgment modification of child support in a dissolution of marriage provides in part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . ." General Statutes § 46b-86(a) (emphasis added). The statutory language, particularly the italicized phrases, support the defendant's position. In 2001, the court modified custody by approving the agreement of the parties to change primary residence of Alexandria to her father's home. The child support order was specifically not changed. Although the change of primary residence undoubtedly provided a basis for modification of the periodic child support order at that time, there is nothing that compels the parties or the court to address such modification at that time. The statute specifically provides that the periodic support order may be modified at any time. Thus the 2001 agreement, by allowing the existing child support order to stand, effectively postponed to a later time modification of the periodic support order.
Furthermore, regardless of how the agreement was enunciated in 2001, this court is not persuaded by the plaintiff's argument that the agreement to not modify the child support orders was tantamount to establishing a support order. "In determining whether there is a substantial change in circumstances, the court considers all evidence back to the most recent court order." Borkowski v. Borkowski, 228 Conn. 729, 741, 638 A.2d 1060 (1994); Easley v. Easley (II), 15 S.M.D. (2001); Danford v. Symonds, 12 S.M.D. 32, 34 (1998); Swain v. Swain, 10 S.M.D. 140, 142 (1996); Thomas v. Thomas, 8 S.M.D. 196, 198 (1994). Keeping in mind that the statutory reference point for future modification is the final order, it is hard to fathom how the act of declining to change the support order can be considered to be the final order for purposes of the present modification. Rather, the court holds that the 1994 modification, which established the monetary orders that the defendant now seeks to modify, is the final order for purposes of determining a substantial change of circumstances.
The court believes that this conclusion would be indisputable if not for the infusion into the 2001 agreement of deviation language. Apparently, the parties felt it necessary to justify allowing the support order to stand even though it did not comply with the guidelines. Yet it is clear that no independent evaluation was undertaken regarding the support orders at the time. The file does not contain financial affidavits for either party nor is there a guidelines worksheet. Judge Graziani made no reference to the amount of the child support orders or the proffered "deviation" but simply commented: "And support is going to remain the same. Is that correct?" Transcript, March 12, 2001.
Even if the events of 2001 could somehow be construed as establishing a new support order, the defendant is not precluded from seeking modification now, because the defendant's attorney sought and received a holding that the orders were "without prejudice." Transcript, March 12, 2001. The plaintiff argues that this court should not recognize the "without prejudice" holding, or that such a provision was improper from its inception.
Both parties cite Bright v. Zoning Board of Appeals of the Town of Fairfield, 149 Conn. 698, 183 A.2d 603 (1962), as supportive of their position. In Bright the Zoning Board of Appeals denied the applicant's application "without prejudice." The applicant reapplied and just a month later, the Board granted the application. The court held that there was no valid reason to have made the first denial "without prejudice" and that because none of the conditions had changed since the first application, the Board was "impotent to reverse itself." Bright v. Zoning Board of Appeals of the Town of Fairfield, supra, 149 Conn. 704, citing Sipperley v. Board of Appeals on Zoning, 140 Conn. 164, 167, 98 A.2d 907 (1953). These cases reiterate a long-standing rule that a zoning board may not revoke its prior action without cause, and are inapposite to the present case.
More helpful guidance is provided by the decision in Walsh v. Walsh, 190 Conn. 126, 459 A.2d 515 (1983). The trial court incorporated a stipulation of the parties as to financial orders in its dissolution judgment, but qualified these orders as "without prejudice to either party reopening the matter in the future." Some two years later, the court granted the plaintiff wife's motion to modify without finding a substantial change of circumstances, and ordered alimony notwithstanding the defendant's claim that the earlier financial orders were not alimony. The Supreme Court affirmed, holding that "the obvious meaning to be accorded the judgment of the court is that when the financial, residential and employment status of the parties came into focus, the orders were subject to future potential modification without the res judicata restraints ordinarily embodied in monetary judgments." Id., 130.
"`[W]here a judgment is stated to be without prejudice as to certain specified matters, it does not operate as res judicata upon matters within the terms of the saving clause, but does conclude all matters not within those terms.' 46 Am.Jur.2d, Judgments § 489." Id., 129-30. Our courts have applied this basic rule to "without prejudice" rulings in a variety of circumstances. State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990) (murder charge may be reinstated after dismissal without prejudice); Basset v. The Merchants Trust Co., 2 Conn. Sup. 145 (1935) (earlier denial without prejudice not a bar to later award of compensation for receiver); Fredericks v. Fortin, 13 Conn.L.Rptr. 234 (1994) (prior denial without prejudice of motion to disqualify counsel not a bar to subsequent rehearing and granting of motion); see also State v. Martin, 197 Conn. 17, 19-20, 495 A.2d 1028 (1985); State v. Phidd, 42 Conn. App. 17, 21-22, 681 A.2d 318, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996); Martin v. Martin, 14 Conn. L. Rptr. 467 (1995).
The plaintiff points to a footnote in Walsh as well as language in Bright and Varanelli v. Luddy, 130 Conn. 74, 80, 32 A.2d 61 (1943), cautioning against qualifying orders as "without prejudice" except in extraordinary circumstances. However, the plaintiff did not object when the order was entered without prejudice. Her quarrel is really with the entry of the qualifier in the first place, and cannot be heard to expect the Family Support Magistrate now to overrule the decision of a Superior Court Judge in 2001. As the Supreme Court observed: "The effect of a denial of a motion or application `without prejudice' will often prevent that ruling from becoming res judicata upon its merits and leave the matter open for further presentation and consideration in the same or another proceeding." Id., 80.
"We have said that such an order should not be made, even by a court; except in situations where there is some reasonable ground for a conclusion that the issues should not be finally decided on the existing situation; otherwise, the tribunal would have the power of postponing the ultimate determination indefinitely." Bright v. Zoning Board of Appeals of the Town of Fairfield, 149 Conn. 698, 704, 183 A.2d 603 (1962).
In the present matter, this court holds that because the proceedings in 2001 did not modify the previous child support order, and because the 2001 trial court qualified its action as "without prejudice," the present defendant need only prove a substantial change of circumstances from the 1994 child support order. As the moving party, the defendant must demonstrate "that continued operation of the original order would be unfair or improper." McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); Noce v. Noce, 181 Conn. 145, 149, 434 A.2d 345 (1980); Harlan v. Harlan, 5 Conn. App. 355, 357, 496 A.2d 129 (1985); Fajaz v. Fajaz, 16 F.S.M. 2002 Ct. Sup. 2405, 8 Conn.Ops. 314 (Colella, F.S.M 2002); Mansfield v. Haynes, 12 S.M.D. 51, 52 (1998); Moffit v. Moffit, 12 S.M.D. 41, 42 (1998); Danford v. Symonds, 12 S.M.D. 32, 33 (1998); Taylor v. Taylor, 7 S.M.D. 43, 45 (1993); Yochum v. Yochum, 6 S.M.D. 75, 80 (1992); Romaniello v. Romaniello, 5 S.M.D. 87, 91 (1991). "The party seeking modification must clearly and definitely show individual facts and circumstances which have substantially changed." McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); Buckman v. Buckman, 16 S.M.D., 2002 Ct. Sup. 8203-bn, 8203-bo (Colella, F.S.M., 2002) affirmed, 2002 Ct. Sup. 11314 (Graziani, J. 2002). The change of primary residence of Alexandria in 2001 meets this standard, and accordingly the motion to modify is granted.
IV
The child support guidelines prescribe how support is to be computed in a split custody situation. The presumptive current support amount is computed for each parent, considering only the children issue of the parties. Then the lesser amount is subtracted from the greater, leaving a net amount payable by the parent obligated by the greater presumptive support amount. Regs., Conn. State Agencies § 46b-215a-2a-(d).
In the present case, determining net income for the parties is difficult. The defendant is self-employed as a salesman. He claims that his business grossed $65,775 for calendar 2003. The plaintiff is a self-employed medical examiner, reporting an average weekly gross income of $474.
His 2002 federal tax return indicates a substantially greater business gross of $82,687 which in turn was less than the $93,365 reported for calendar 2001.
Each claims significant business expenses. The child support guidelines allow exclusion of "all reasonable and necessary business expenses." Regs., Conn. State Agencies § 46b-215a-1-(11)(a)(ix). Those business expenses which represent actual expenditures by a party necessary to his or her business, which would not be expended by a wage earner are properly deducted from the business gross income. Items such as depreciation which do not represent an actual cash flow, or items that would not be deducted by a wage earner, such as commuting costs, are not deductions for purposes of a child support computation, even if they are lawful deductions allowed by the Internal Revenue Service for tax purposes. Means v. Means, 17 Conn. L. Rptr. 26, 1996 Ct. Sup. 4010-kk, 4010-oo (Teller, J. 1996); Figler v. Figler, Superior Court, judicial district of New Haven, doc. no. FA95-0374849, 1996 Ct. Sup. 6122, 6129 (Alander, J., Aug. 2, 1996); Tharau v. Koutroumanis, 13 S.M.D. 149, 152 (1999); Nicholas v. Nicholas, 10 S.M.D. 98, 101, affirmed, Solomon, J., Oct. 8, 1997.
The burden of proof is on the party seeking the modification. Connolly v. Connolly, 191 Conn. 468, 473, 464 A.2d 837 (1983); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); Richard v. Richard, 23 Conn. App. 58, 63, 579 A.2d 110 (1990); Mansfield v. Haynes, 12 S.M.D. 51, 52 (1998); Moffit v. Moffit, 12 S.M.D. 41, 42 (1998); Danford v. Symonds, 12 S.M.D. 32, 33 (1998); Murray v. Stone, 11 S.M.D. 149, 150 (1997); O'Dell v. O'Dell, 9 S.M.D. 7 (1995); Meyer v. Meyer, 7 S.M.D. 49, 52 (1993); Taylor v. Taylor, 7 S.M.D. 43, 44 (1993); Yochum v. Yochum, 6 S.M.D. 75, 80 (1992); Noble v. Noble, 6 S.M.D. 31, 32 (1992); Berluti v. Berluti, 5 S.M.D. 377, 381 (1991); Dubitzky v. Dubitzky, 5 S.M.D. 261, 271 (1991); Monahan v. Monahan, 4 S.M.D. 223, 227 (1990).
It is up to this court, as the trier of fact, to determine the credibility of witnesses and the weight of their testimony and that of the documentary evidence. Powers v. Olson, 252 Conn. 989, 105, 742 A.2d 799 (2000); Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); Raia v. Topehius, 165 Conn. 231, 235, 332 A.2d 93 (1973); Shearn v. Shearn, 50 Conn. App. 225, 231, 717 A.2d 793 (1998); Mansfield v. Haynes, 12 S.M.D. 51, 52 (1998); Danford v. Symonds, 12 S.M.D. 32, 33 (1998); Kimery v. Kimery, 9 S.M.D. 54, 57 (1995); O'Dell v. O'Dell, 9 S.M.D. 7, 8 (1995); Hepburn v. Hepburn, 8 S.M.D. 126, 133 (1994); Fretina v. Fretina, 5 S.M.D. 139, 142 (1991).
The court has the right to accept part and disregard part of the testimony of any witness. Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Rood v. Russo, 161 Conn. 1, 3, CT Page 9159 283 A.2d 220 (1971); Greene v. Perry, 62 Conn. App. 338, 343, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 943 (2001); Berluti v. Berluti, 5 S.M.D. 377, 382 (1991). The trial court is not bound even by uncontroverted evidence. Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); Acheson v. White, 195 Conn. 211, 217, 487 A.2d 197 (1985); Meir v. Meir, 15 S.M.D. (McCarthy, F.S.M., 2001).
The plaintiff and the defendant each claim a substantial deduction for automobile expenses. They each chose a different technique to calculate the deduction. The plaintiff totaled her actual expenditures for gas, insurance and car payments. She allocated 60% of each item as a business expense. Testimony suggested that this allocation was somewhat arbitrary. Transcript, February 17, 2004, 92.
There was no proof of a more accurate allocation of the gas and insurance costs. The court will accept the plaintiff's estimate. While not precise, they appear to be reasonable. With regard to the car payments, however, absent a detailed analysis of the extent of the plaintiff's equity in the vehicle and the nature of loan terms, the deduction is disallowed. The court will allow the deduction for office supplies and 50% of the telephone, cell phone, e-mail and postage expenses.
As to the defendant, he claims a deduction of $22,781.00 for car expenses. He claims that 61,570 miles out of a total of 65,775 for calendar 2003 are business miles and calculated the deduction by claiming 37 cents per mile as allowed by the Internal Revenue Service. This claimed deduction is not credible.
The vehicle used for business purposes is not listed on the defendant's financial affidavit. It is apparently owned by the defendant's ex-wife. He claims as part of his divorce settlement, that he is required to pay all of the costs, including insurance and loan payments, and that at some future time he will acquire title. Transcript, February 17, 2004, 61-63, 67-81.
Subsequent to the hearing, by agreement, the defendant submitted a copy of what he claims is a daily log of business miles. The total miles on the log is 40,930 which is significantly short of the mileage testimony at the trial. There is no justification for a 37 cent per mile deduction other than the assertion that Internal Revenue allows it. Nor is it appropriate to allow deductions for insurance payments or loan payments for a vehicle he does not own. A deduction of $12,000 is allowed.
The defendant also claims 3,895 miles on a rental vehicle on a business tip to Florida. However, the receipt purporting to support this claim was not admitted into evidence pursuant to a hearsay objection. Furthermore, he claims a separate deduction for rental cars on the business expense appendix to his financial affidavit.
It is noted that the original claim of 61,570 business miles did not take into consideration commuting miles, which would not be deductible for child support purposes. The 40,930 miles would seem more realistic in terms of ascribing some miles to commuting to work locations. Incidentally, that figure computes to 62.2% of the total miles for the year — almost exactly the ratio estimated by the plaintiff for her business miles.
Two additional observations make the defendant's mileage claim suspect. The defendant testified that the total miles traveled by the vehicle in 2003 was 65,775 including personal miles. That number is exactly the same as what he claims as the business gross income for the year. That is either a remarkable coincidence, an inadvertent confusion of the two numbers, or a fabrication.
Secondly, it is noteworthy that the 2003 deduction claimed by the defendant for car expenses of $22,781 is almost exactly the same as the 2002 deduction of $22,878 and the 2001 deduction of $22,845 even though the purported business gross income dropped by 25.7% from 2002 and 41.9% from 2001.
Notations on the submitted log would yield the following calculation: 40,930 miles/15.7 miles/gal. × $1.60/gal. + $225.00 oil + $540.00 tires = $4,936.21. This figure is roughly consistent with the $6,500.00 that the defendant claimed as deductible car expenses on his November 2003 financial affidavit (plaintiff's exhibit B). Some increase of these figures may be justified due to increasing fuel costs and to allow for other repairs and maintenance of the vehicle. The court will allow $12,000 as a generous deduction for vehicle expenses.
For purposes of computing child support, the court also disallows the deductions for meals. Wage earners generally pay for their own meals at work and get no deduction. Likewise, his claimed deductions for medical and dental costs are disallowed.
The defendant specifically testified that the claimed deduction represented out-of-pocket medical and dental expenses, not insurance costs. Transcript, 2/17/2004, 52-53. Medical and dental insurance premiums (but not actual costs of services) are allowable deductions on line 6 of the child support guidelines worksheet pursuant to Regs., Conn. State Agencies § 46b.215a.1-(1)(D).
His tax estimates are not credible, particularly in view of the significantly smaller amounts actually paid for tax year 2002 and his disingenuous attempt to deduct the earned income credit and additional child credit as if they were actual tax payments. According to his 2002 tax return, while his total federal tax was $3,610, after the credits were adjusted, he paid a total of just $977 including withholding. His total State income tax for the year was just $22, hence rounds to zero per week for purposes of the guidelines computation. In the absence of a credible estimate of his 2003 tax liability, the court will grant him deductions bases on his 2002 taxes with a line 2a adjustment for the earned income and child credits.
Based on the forgoing findings, the court has calculated its own child support guidelines worksheet. As the guidelines provide, the support contribution by each parent is determined. The plaintiff's support obligation is $59.36 per week and the defendant's support obligation is $164.64 per week. The net amount is $105.28 per week payable by the defendant father. The guideline worksheet follows:
Editor's Note: The referenced worksheet has not been reproduced herein.
V
The motion to modify is granted. The court orders the defendant to pay $105.28 per week net current support pursuant to the split custody computation. The existing order for the defendant to pay an additional $14.00 per week on the arrearage remains in place, making the total payable order $119.28 per week. The order is retroactive to August 6, 2003, the date that in-hand service of the motion was made upon the plaintiff in compliance with General Statutes § 52-50. The support enforcement division is directed to recompute the arrearage based on this modification and notify both parties and counsel of the result. The income withholding order is modified accordingly. All other prior orders including the orders regarding medical insurance and unreimbursed medical costs remain in effect.
The support enforcement officer testified that an "administrative add-on" had been levied against the defendant; that is a periodic arrearage payment order placed without a court order. However, in 1994 the court entered a $14.00 per week arrearage payment order. Therefore, any "administrative add-on" was unlawful, since the statute specifically provides: "In no event shall such an additional amount be applied if there is an existing arrearage order from the court or family support magistrate . . ." General Statutes § 52-362(e).
BY THE COURT
Harris T. Lifshitz Family Support Magistrate