Opinion
No. FA90-0606785
March 14, 2005
MEMORANDUM OF DECISION
The State of Connecticut filed this motion to modify the child support order, claiming that "there has been a substantial change in circumstances, due to the fact that the existing current support order deviates from the Connecticut Child Support Guidelines by at least fifteen percent." The motion was filed at the request of the defendant father, who supports the motion. The plaintiff mother and the child's court-appointed representative oppose the motion.
This language is commonly used as a computer-driven template for motions filed under the so-called "review and adjustment" process. It actually intermingles and misstates two alternative statutory grounds for modification: substantial change of circumstances; or substantial deviation from the child support guidelines. Neither the plaintiff nor counsel for the child filed a request to revise, nor did either of them object to the form of the motion. Accordingly, the court considered the motion to seek modification based on both alternative grounds.
By way of factual background, the file reveals the following: The child who is subject to this action is L. who was born in Hartford on —, 1989 to the plaintiff mother, who was then unmarried. The Commissioner of Human Resources filed a paternity action against the defendant pursuant to his authority under General Statutes § 46b-162.
Subsequently the Department of Human Resources and the Department of Income Maintenance were merged to form the present Department of Social Services. As is the conventional practice in paternity matters as well as support actions where a custodial parent is listed as co-plaintiff, the "State of Connecticut" is listed as the second plaintiff rather than the commissioner or the department. The child's mother, B.W., is listed as the primary plaintiff, even though the Attorney General commenced the action.
The defendant appeared by counsel and filed a motion for "blood tests." The court, Steele, F.S.M., on July 2, 1990, ordered that the parties and child undergo genetic testing. Eventually, the tests were performed, and the laboratory report which was placed in evidence, indicates a combined paternity index of 1,057 to 1 or a probability of 99.91% that the defendant is L.'s biological father. After trial on December 18, 1990, the court Keller, F.S.M., entered judgment that the defendant is L.'s father, ordered him to pay $40.00 per week child support plus $5.00 per week on an arrearage of $2,080 to the State of Connecticut.
At or around the time that this matter was filed, statutory changes moved jurisdiction of state-initiated paternity cases from the family docket of the Superior Court to the Family Support Magistrate Division of the Superior Court, and replaced provisions for blood grouping or HLA tests with genetic tests, which are required to be deoxyribonucleic acid (DNA) tests.
The clerk's worksheet and the income withholding order issued by the clerk of the court contemporaneously with the hearing both list the current support order as $40.00. The judgment file which was subsequently prepared by the Attorney General's office and filed some time later, states the current support order as $48.00 per week. The defendant's motion to modify refers to this putative $48.00 order.
The defendant moved to modify the order on March 19, 1991. The parties submitted a written stipulation which was accepted by the court to reduce the current support order to $30.00 per week and the arrearage balance to $1,560. There is no child support guidelines worksheet in the file supporting any of the support orders. The only financial affidavit is that of the defendant dated December 18, 1990. H.T. disclosed that he was then a cleaning supervisor working at Copaco market earning $224.03 gross income with a net income of $206.75 per week.
The stipulation was signed by counsel for the defendant and the Assistant Attorney General. The plaintiff's typewritten name appears, but she did not sign. The Assistant Attorney General does not have a lawyer-client relationship with the plaintiff, and in fact represents the frequently conflicting interests of the State of Connecticut. Furthermore, although the agreement reduced both the accrued arrearage and the periodic support order, the independent interest of the child was not represented.
In May of 2003 the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70. Because the victim was under sixteen years of age, this crime is a class A felony and the defendant was sentenced to ten years incarceration. The victim of the first degree sexual assault was his daughter, the child whose support is the subject of this case.
[Editor's Note: Footnote 6, which recites the language of General Statutes § 53a-70, has not been included in the reported opinion.]
Now the State moves to modify the defendant's child support downward. Because of his incarceration, the defendant has suffered a substantial decrease in his income. The state also claims that there is a substantial deviation from the child support guidelines because strict application of the guidelines would yield a presumptive order of zero as opposed to the present $30 per week order. Public Acts No. 03-258 § 4, codified as General Statutes § 46b-215c, limits liability for child support for obligors incarcerated as the result of criminal convictions, requiring that child support be calculated based on the obligor's actual income only. According to his testimony, the defendant does not work at the correction facility and has no outside income. Therefore his income is zero.
I
The treatment of child support obligors who have been incarcerated for conviction of crimes has been much debated throughout the country as well as within Connecticut. Both courts and legislatures have wrestled with the issue.
In Connecticut courts were split on the question until 1997 when a published Superior Court decision Charette v. Charette, Superior Court judicial district of Tolland at Rockville, Docket No. FA94-56183, 19 Conn. L. Rptr. 187, 3 Conn. Ops. 579, 1997 Ct.Sup. 3609 (April 30, 1997, Zarella, J.), became the seminal case on the issue of incarcerated child support obligors. That court held that "its failure to order any support would work an injustice on the plaintiff not the defendant. The plaintiff will be forced to shoulder the entire burden of the cost of the child's upbringing. Funds that she could otherwise set aside for other purposes such as college education . . . will be diverted to pay for the defendant's share of the cost of rearing their child. In balancing the equities the court believes that an order of support which may not be reimbursed until sometime in the future — even after the child reaches majority — is preferable than no order at all." Id., 19 Conn. L. Rptr. 187, 189, 3 Conn. Ops. 579, 581, 1997 Ct.Sup. 3616.
The court applied the law of self-imposed reduction in earning capacity to the circumstances of an obligor incarcerated after conviction of criminal activity. "The court finds that the decrease in the defendant's income has been occasioned by the defendant's own fault . . . His conduct in committing multiple assaults and burglary resulting in his arrest and conviction is inexcusable conduct. The defendant knew or should have known that his intentional acts would result in his incarceration and loss of income . . ." (Citation omitted.) Id., 19 Conn. L. Rptr. 187, 189, 3 Conn. Ops. 579, 582, 1997 Ct.Sup. 3618.
Subsequently all reported decisions in Connecticut on the issue have followed Charette. Chenard v. Chenard, Superior Court judicial district of Waterbury, Docket No. FA00-0161212, (November 27, 2002, Berdon, J.R.); Forman v. Forman, 29 Conn. L. Rev. 394, 2001 Ct.Sup. 3663 (March 13, 2001, Robaina, J.); Fox v. Fox, 16 S.M.D., 32 Conn. L. Rptr. 171, 2002 Ct.Sup. 6090 (May 3, 2002, Colella, F.S.M.); Shepaum v. Hernandez, 14 S.M.D. 374 (November. 20, 2000, Bentivegna, F.S.M); Shipman v. Roberts, 15 S.M.D. (2001); Suarez v. Carmona, 14 S.M.D. 414 (November 28, 2000, Bentivegna, F.S.M); McBride v. Singleton, 13 S.M.D. 267, 2000 Ct.Sup. 693 (December 25, 1999, Lifshitz, F.S.M); Morton v. Morton, Superior Court, judicial district of Tolland at Rockville, Docket No. 67544 (April 7, 1999, Zarella, J.); Graham v. Graham, 12 S.M.D. 172 (November 19, 1998, Sosnoff, F.S.M.), Crouse v. Crouse, Superior Court judicial district of New London at Norwich, Docket No. 0107979, 21 Conn. L. Rptr. 390, 1998 Ct.Sup. 1642 (February 11, 1998, Solomon, J.); Carrero v. Gonzalez, 11 S.M.D. 177 (August 3, 1997, Lifshitz, F.S.M.); Scapin v. Scapin, Superior Court judicial district of Litchfield at Litchfield, 11 S.M.D. 171, 20 Conn. L. Rptr. 348, 3 Conn.Ops. 1039, 1997 Ct.Sup. 9530 (July 28, 1997, Lifshitz, F.S.M.). This development of common law placed Connecticut firmly in what has become the majority position among states, that incarceration for commission of a crime is no justification for relief from child support obligations.
A more complete discussion of the development of the law in Connecticut, as well as a survey of cases from sister states may be found in Ballinger v. Wingate, Superior Court, Superior Court, judicial district of New London at New London, Docket No. FA97-0541718, 18 S.M.D. 2004 Ct.Sup. 6140 (April 7, 2004, Lifshitz, F.S.M).
General Statutes § 46b-215c mandates that child support for persons incarcerated must be computed based on actual income without deviation. The provision limiting child support payments by incarcerated obligors is found in section 4 of Public Acts No. 03-258, codified as General Statutes § 46b-215c, which is titled "An Act Concerning Voluntary Paternity Establishment and the John S. Martinez Fatherhood Initiative." House Bill No. 6518 was passed in the waning minutes of the last day of the 2003 regular session of the General Assembly, and upon signing by Governor Rowland, became the public act cited.
General Statutes § 46b-215c provides: "Notwithstanding any provisions of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income in accordance with the child support guidelines established pursuant to section 46b-215a of the general statutes."
"Public Act No. 03-258 overruled these cases and moved Connecticut into the `complete justification' column. Under the statute, during periods in which the defendant was incarcerated, the court is mandated to calculate child support `based on the obligor's present income in accordance with the child support guidelines . . .' Put another way, the statute precludes the court from entertaining any deviations for periods in which the obligor is incarcerated. Thus for those periods of time, the support arrearage for the periods of incarceration must be the same as the presumptive chargeable support for those time periods . . ." Ballinger v. Wingate, supra, 18 S.M.D. 2004 Ct.Sup. 6140 (2004).
The child's attorney and guardian ad litem (hereinafter "the child's attorney") argues that the statute is not applicable to the present matter because the legislature failed to consider and address circumstances wherein the child subject to the support order is also the victim of the crime. He argues that notwithstanding the language of the statute, the court is not precluded from applying deviation criteria in setting or modifying the support order. Lastly, he argues that since modification is essentially an equitable remedy, the court should apply the "clean hands" doctrine and deny the defendant modification because of his reprehensible conduct.
Connecticut has long recognized that children have a separate and independent interest in family relations matters. In re Bruce R., 234 Conn. 194 209-10, 662 A.2d 107 (1995); Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985); Salvio v. Salvio, 186 Conn. 311, 441 A.2d 190 (1982); Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 (1981); Ragin v. Lee, 78 Conn.App. 848, 861, 829 A.2d 93 (2003). Independent representation is particularly appropriate here where the Department of Social Services and the Support Enforcement Division both sponsored the legislation that jeopardizes the child support award.
II
"`According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature . . . In determining the intent of a statute, we look to the words of the statute itself, 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.) Johnson v. Mazza, 80 Conn.App. 155, 834 A.2d 725 (2003). Because the language of the statute is the most important consideration in determining the meaning of the statute, our interpretive task begins with the relevant statutory language. State v. Courchesne, 262 Conn. 537, 563, 816 A.2d 562 (2003) (en banc); see also Public Acts 2003, No. 03-154[, codified as General Statutes § 1-2z] (courts should first look to plain meaning of words of statute when interpreting statute's meaning)." Mangiante v. Niemic, 82 Conn.App. 277, 280-81, 843 A.2d 656 (2004). The clear language of General Statutes § 46b-215c mandates that child support for persons incarcerated must be computed based on actual income without deviation.
Despite the clear language of the statute and the mandate of General Statutes § 1-2z regarding the primacy of the plain meaning of words of a statute, the child's attorney urges this court to indulge in a Courchesne analysis of the act. He points out that "the legislature did not consider crimes that were committed against the child for which the child support is being paid." He correctly observes that the debate on passage of the act in the Senate was truncated and concerned solely with procedure. In the House, most of the discussion centered around other portions of the public act and the only reference to section 4, the portion relevant to this issue was a comment by Representative Peter Villano that "it bases child support payments on his history of earnings and current ability to pay." 46 H.R. Proc., Pt. 19, 2003 Sess., p. 6162. After this briefest of discussions the bill was passed by both houses.
The Senate vote was 34-0 for adoption. The House vote was 145-0 for adoption. Senate passage occurred in the waning moments of June 4, 2003 which was the last day of the regular legislative session.
The child's attorney urges the court to look further into the committee discussions of the bill. At the March 11, 2003 Human Services Committee meeting, the committee heard testimony from Patricia Wilson-Coker, the Commissioner of the Department of Social Services, who stated: "The bill provides that current support orders are established and modified against institutionalized or incarcerated obligors on the basis of their present income. The purpose of this change is, against avoid the accrual of large uncollectable arrearage amounts and to remove the psychological hurdle of large possibly usually hopeless debt from the parent's future — the parent's future. In this way, it enables the parent to maintain or establish a parent-child bond upon release, which is impeded when there is an unrealistic arrearage." Human Services Committee Hearings, Pt. 3, 2003 Sess. p. 744.
Thus the legislative history suggests that the argument of the child's attorney is correct. There is nothing in the brief debates or committee discussions regarding the situation where the child or the custodial parent is the victim of the crime. In fact there is not a word of discussion regarding the effect of the legislation on the child or the custodial parent. The Commissioner, whose department proposed the legislation, posed only benefits to the support obligor — the convicted criminal — as reasons for the legislation.
It is curious that the committee and later the full General Assembly, accepted without question that the common law which would have denied the convicted criminal relief from child support obligations, would result in "large, uncollectable arrearage amounts." Most incarcerated criminals eventually serve their sentences and are released. They then have the ability to return to the workforce and begin to pay off the child support debt along with other unpaid obligations.
It also does not automatically follow that the accrued arrearage will be inordinately "large." A proponent of the bill, Attorney Lucy Potter of Greater Hartford Legal Aid, Inc. and a member of the Child Support Guidelines Commission spoke of "these low income guys . . . coming out of the initial court proceeding often with debts of $10,000 or $20,000 or even $50,000 that they never will have the ability to pay." Human Services Committee Hearings, supra, p. 797. Yet in the present case, as the child's attorney points out the defendant would accrue an additional arrearage of $4,985.00 by the time the child reaches majority. This arrearage would be neither large nor uncollectable.
At the hearing, the child's attorney incorrectly estimated that the arrearage that would accrue if the modification were denied, would total approximately $15,000. This was corrected in a subsequent written pleading. Since the child will attain majority in less than three years, the estimated additional arrearage accruing would be $4,985.00 in addition to the small arrearages reported by the support enforcement officer at the time of the hearing, which were $180 to the State of Connecticut and $485 to the plaintiff.
The second reason given by the Commissioner is the "psychological hurdle" of the child support debt on "the parent's future" which purportedly impedes the establishing of a parent-child bond upon release. In this case, the defendant was convicted of committing repeated sexual assaults upon the child from the time she was six or seven years old until the age of thirteen. According to the plaintiff, the child, now fifteen, has no intention of ever having a father/daughter relationship with the defendant. Transcript October 22, 2004, pp. 20-21.
Although the child's attorney has demonstrated that the plight of a child victim of the crime being penalized by losing her child support was not discussed in the legislature or committee and further that the two principal rationales for the legislation do not apply in this case, this does not confer on this court the authority to invalidate or avoid the plain language of the act. Nor can the court presume that simply because the issue was not vocalized, that the legislators did not contemplate the effects on the children and the custodial parents. In fact as mentioned, these issues have been discussed at length in numerous published court cases in Connecticut and around the country. Surely the proponent of this act and the legislators that voted in favor of it must have read Charette v. Charette, the very case they were overruling, which thoroughly articulates the detrimental effects of the loss of child support to the child and custodial parent.
The legislature could have adopted a statute that incorporated the holdings of Charette v. Charette. They did not. They could have allowed the case law to stand. They did not do that either. The legislature could have easily carved out an exception to shield the victims of the defendant's crimes from being further punished by also losing their child support. But they did not do that either. Like it or not the meaning of General Statutes § 46b-215c is clear. Any redress on behalf of this child or others in a similar situation must be sought from the legislature, not the court.
III
The child's attorney argues that despite the language of the statute, the court is not precluded from applying deviation criteria in setting or modifying the support order. He bases this argument on the last clause of the act: "in accordance with the child support guidelines established pursuant to section 46b-215a of the general statutes." He posits that since the child support guidelines include deviation criteria, the act does not preclude deviations, but actually requires their consideration.
General Statutes § 46b-215c states: " Notwithstanding any provisions of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support upon proper motion, based upon the obligor's present income in accordance with the child support guidelines established pursuant to section 46b-215a of the general statutes." (Emphasis added.) The child's attorney's theory would necessitate the deletion of the italicized words from the act. Absent those words, the argument holds. However, absent those words, the act would be unnecessary because it would reflect the status of the previous law.
Of course this court cannot delete words from a statute. "[I]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) Fleet National Bank's Appeal From Probate, 267 Conn. 227, 250, 837 A.2d 785 (2004); Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 536-37, 829 A.2d 818 (2003).
The clause "based upon the obligor's present income " directs that the guidelines calculation based on the present income is the exclusive factor in determining the child support order. If the plain language of the act is not enough, the committee discussions including the testimony of the Commissioner make it crystal clear that the intent of the statute is to preclude any deviation.
Contrast this statute with the language of General Statutes § 46h-80 as amended by Public Act No. 03-130 which specifically precludes deviating based on earning capacity, but allows application of other deviation criteria. Flagg v. Flagg, 19 S.M.D. 1, 18 (2004); Lively v. Barnaby, 18 S.M.D 2004 Ct.Sup. 14329, 14338 (2004).
IV
Lastly, the child's attorney argues that since modification is essentially an equitable remedy, the court should apply the "clean hands" doctrine and deny the defendant modification because of his reprehensible conduct. As with counsel's other arguments, there is a certain validity to his logic, but it is insufficient to prevail. Asking a statutory court to countermand a plain language statutory mandate is a particularly difficult reach.
To be sure, equity does stack up on the side of this minor child, just as surely as the law seems to stack up against her. A modification of the support order in the present case would victimize the child (and the custodial parent) thrice. First, she was the victim of a horrendous crime at the hands of her father, the defendant. Second, if the modification is granted, she loses the remainder of her child support. She will achieve majority before the defendant completes his incarceration, at which time there will be no means to reinstate child support.
The third form of punishment of this child and her mother, the custodial parent, relates to the perhaps unintended result of a combination of statutes and regulations. The plaintiff received temporary family assistance (TFA) during certain limited periods of time for the child. Although the plaintiff is presently working, she presently receives TFA payments and may continue to receive such payments until the child reaches majority. If the defendant's support order is not modified, his support obligation is assigned to the State of Connecticut to offset the TFA payments.
While the defendant is incarcerated with no income, he would likely not make any payments on his support order until he completes his sentence. However, the accruing arrearage would partially offset the accruing TFA reimbursement obligation. Thus under normal circumstances, when the defendant is released, he would begin paying off the arrears child support which, by way of the assignment would effectively result in repaying the TFA.
However, TFA reimbursement is a joint and several obligation of both parents. General Statutes § 17b-93. If the defendant's child support order is modified to zero, the plaintiff — the custodial parent — would become the only source from which the State could collect its TFA reimbursement. If the State chooses to pursue this, an action which is entirely plausible and totally beyond the control of the plaintiff or the child, the plaintiff would be compelled to pay the State of Connecticut. If this occurred before the child reaches majority, it could directly diminish the plaintiff's financial resources available to support her child, while relieving the defendant of even his joint and several obligation by paying down his support arrearage.
The State could opt to collect accrued TFA reimbursement from the plaintiff while the defendant is incarcerated, even if the support order remains in place. However, the accruing arrearage would still be owed by the defendant and if the plaintiff pays off all of the TFA, the State's balance would be reassigned to the plaintiff, holding out the hope of future reimbursement from the defendant. If no arrearage accrues, the plaintiff would not have any recourse against the defendant.
A detailed discussion of this scenario took place at the hearing, see Transcript, October 22, 2004, pp. 53-61.
V
The child's attorney did not argue that the statute was unconstitutional. Perhaps this was due to the recent unsuccessful constitutional attack on General Statutes 46b-80 as amended by Public Acts No. 03-130. In an appeal from the Family Support Magistrate Division, the reviewing court observed: "`It is important, at the outset to recognize that the challenge of any state statute on constitutional grounds imposes a difficult burden on the challenger . . . [W]e have consistently held that every statute is presumed to be constitutional and have required invalidity to be established beyond a reasonable doubt.' (Citations omitted; internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 647-48, 775 A.2d 947 (2001)."
"`It is well settled that [i]n the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face . . . A judicial holding that a legislative [a]ct is unconstitutional is one of very grave concern. We ought not and will not declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: it is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the [a]ct unless its invalidity is, in our judgment beyond a reasonable doubt . . . Furthermore, outside the context of the first amendment in order to challenge successfully the facial validity of a statute, [the challenging] party [must] demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of [her] case. (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 65-6, 824 A.2d 611 (2003).'" Naglak v. Ashline, Superior Court judicial district of Tolland at Rockville, Docket No. FA92-0049874, 37 Conn. L. Rptr. 261, 262 (August 2, 2004, Graziani, J.).
"The trial court also states: `Constitutional attacks on the rationality of economic or social welfare legislation must rebut the presumption of constitutionality that attaches to such legislation. [T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.' (Internal quotation marks omitted.) Connecticut Education Assn. v. Tirozzi, supra, [ 210 Conn. 299]." Naglak v. Ashline, supra, 37 Conn. L. Rptr. 264, 2004 Ct.Sup. 9286 (2004).
As a final matter, it is noted that our Supreme Court has held that minor children may appeal an order regarding their own support, if the trial court finds that it is in their best interests to do so. Newman v. Newman, 235 Conn. 82, 102, 663 A.2d 980 (1995). The court hereby finds that there is no conflict between the minor child's preferences and her best interests, and that the results of this decision as compelled by law are adverse to her best interests. Accordingly, her court-appointed guardian ad litem and attorney is given leave to appeal this decision. Given the important consequences to children throughout the State who may find themselves in a similar situation, and the obvious conflict of interest of the Department of Social Services and the Support Enforcement Division, the attorney is encouraged to take such an appeal to as high a level as is necessary.
The motion to modify is granted. The defendant is an incarcerated obligor and has zero income. The presumptive child support pursuant to the guidelines is $0. The court is precluded from deviating from the guidelines. The order is modified to $0 plus $0 on the arrearage. The effective date of the modification is February 21, 2005.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate