Summary
finding that the defendant was "aggrieved" by magistrate's decision finding an arrearage in support payments and ordering payment of current support as well as the arrearage
Summary of this case from Stavis v. BarksdaleOpinion
File No. 235351
February 11, 1992
Paternity; motion for modification of child support; whether defendant's obligations for support and arrearage were suspended where support order was entered after defendant's incarceration for criminal conviction unrelated to support; whether family support magistrate properly determined that child support guidelines were rebutted by finding of defendant's ability to pay support prior to his incarceration.
Memorandum filed February 11, 1992
Memorandum of decision on defendant's motion for modification of an order of support. Motion granted in part.
George S. Szydlowski, assistant attorney general, and Richard Blumenthal, attorney general, for the plaintiff.
Abrams Nugent, for the defendant.
The respondent brings this appeal from the magistrate's decision of April 3, 1991, finding an arrearage in support payments and entering ordering payment of current support as well as the arrearage. Appellate proceedings such as these are governed General Statutes. § 46b-231.
On February 23, 1990, the state of commissioner of human resources brought suit against the respondent, Henry Bridgeforth, to establish paternity of a child, Sonia Yrayta, born December 17, 1983. On April 3, 1991, the respondent admitted paternity of Yrayta before the court. The respondent has been incarcerated at the state correctional institute in Somers, since 1986. After argument and evidence, the family court magistrate found an arrearage of child support in the amount of $43 per week for 210 weeks, totaling $9030. The magistrate ordered the respondent to pay $45 per week current support and $5 per week on the arrearage. The orders were based on evidence of income from the respondent's employment prior to his incarceration. The child support guidelines issued pursuant to Public Act 1989, No. 89-203 establish a level of child support based on the actual income of the payor or payee. Provision is made for deviation from the guidelines, however, "where such income is reduced due to voluntary unemployment or underemployment without good cause." Final Report of the Commission for Child Support Guidelines, 1991, p. 6 § (c) (7). The respondent has appealed the magistrate's decision.
The court held a hearing on June 20, 1991, at which the court found the respondent to be aggrieved. The parties further stipulated that the respondent, at the time of his incarceration, had no assets other than his wages, which at the time provided him with disposable income of $180. It was further stipulated that the respondent was incarcerated for a criminal conviction unrelated to support.
The issue before the court is whether the order of the magistrate, finding that the guidelines were rebutted by a finding of ability to pay as based upon the respondent's income prior to incarceration, is correct as a matter of law. See Child Support Guidelines, effective March 1, 1991, § (a)(3)(B), p. 8.
As previously noted, the guidelines provide for deviation when the actual income is reduced due to voluntary unemployment or underemployment without good cause.
In support of its claim the state cites Collier v. Jennings, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 601172 (December 30, 1987) (Lifshitz F.S.M.), a case from the family support magistrate division, in which the respondent requested a modification of the arrearage due based upon his inability to make payments while incarcerated for a conviction unrelated to support. His request was denied because of the prohibition against retroactive modification of arrearages. Collier observes that there is no reported case in Connecticut as to whether support orders should be abated during such an incarceration unrelated to support.
State courts have differed as to whether an existing support order should be modified as a result of incarceration unrelated to support. It must be conceded that the compensation to the respondent is below the amount calculated under the guidelines.
Several courts have adopted the theory that any individual who engages in criminal or otherwise irresponsible behavior, does so at his peril, and cannot be heard to claim that his reduction in means was not his own fault. Ohler v. Ohler, 220 Neb. 272, 275, 369 N.W.2d 615, (1985); Noddin v. Noddin, 123 N.H. 73, 76, 455 A.2d 1051, (1983); Koch v. Williams, 456 N.W.2d 299, 301-302 (N.D. 1990); Parker v. Parker 152 Wis.2d 1, 5, 447 N.W.2d 64, (1989). Accordingly, modification of support was denied.
Other courts have approved a modification while the respondent is incarcerated. In Matter of Marriage of Edmonds, 530 Or. App. 539, 633 P.2d 4, 5 (1981), the court notes: "where a non-custodial parent is imprisoned for a crime other than nonsupport . . . we believe the better rule should be that the parent is not liable for such payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make payments." This view is followed in Clemans v. Collins, 679 P.2d 1041, 1041-42 (Alaska 1984), and Pierce v. Pierce, 162 Mich. App. 367, 370-71, 412 N.W.2d 291 (1987) (citing the dissent of the chief justice in Ohler v. Ohler, supra.)
All of the foregoing cases involved modifications of orders in existence at the time of incarceration. Foster v. Foster, 99 App. Div. 2d 284, 471 N.Y.S.2d 867 (1984), was concerned with divorce proceedings at which time the defendant was earning $6.50 per hour. Between the date of the hearing and the issuance of the decree and support order, the defendant became incarcerated. The decree ordered support of $200 per week. The defendant moved to modify, so as to suspend payments until his release. The appellate division reversed, noting agreement with the Oregon court of appeals id., 869; and suspended payments from the date of incarceration to the date of his release, noting that the support obligation may be resolved retroactively, since the violation was not wilful. Kolkmeyer v. Kolkmeyer, 18 Conn. App. 336, 342, 558 A.2d 253 (1989).
Foster v. Foster, supra, appears to be the only reported case where a support order was entered after incarceration. The court agrees with Foster and its reliance on the holding in Matter of Marriage of Edmonds, supra.