Opinion
No. FA96-0062676
January 11, 2005
MEMORANDUM OF DECISION
The plaintiff mother and the defendant intermarried on October 9, 1981 at Levittown, Pennsylvania. There were three children issue of the marriage: Stephanie Flagg, born March 7, 1985; Erin Flagg, born March 17, 1986 and Kaitlynn Flagg, born November 20, 1990. The plaintiff filed her complaint seeking dissolution of the marriage on December 24, 1996. The proceedings were contentious and numerous pre-judgment motions and orders were entered. It is of interest that the initial pendente lite support order required the defendant to pay $195.00 per week in unallocated child support. The file reveals that the order complied with the child support guidelines based on defendant's reported weekly gross income of $612.00 from Wells Fargo Company with a calculated net of $485.83 per week. The apparent financial fortunes of the defendant commenced a downward spiral from that point.
Ultimately, the matter went to a contested trial. On November 20, 1998 the court, Steinberg, J., rendered a judgment dissolving the marriage. The parties were awarded joint custody of the three minor children with primary residence with the plaintiff mother. By July 1998 the defendant reported himself unemployed and disabled, receiving $297.05 per week in long-term disability payments. By November, these payments had stopped. It was represented to Judge Steinberg that the cessation of disability payments was due to "insurance company infighting." The court ordered $80.00 per week in unallocated child support and complied with the defendant's proposal that such payments be made "in the future" when the disability payments commenced and be "retroactive" (presumably to the judgment date) with "all accrued arrearages . . . paid from those retroactive payments." However, Judge Steinberg also found that the defendant's parents were contributing to payment of his expenses and as such, he was the beneficiary of regular imputed income of at least $300 per week plus $200 per month. The defendant was ordered to pay at least $20 per week of the child support order, with the balance to accrue as previously ordered. It is not clear from the file whether the defendant actually commenced payment of the $80 order or whether the accrued arrearages were ever paid from retroactive disability payments or otherwise.
Post-judgment the parties continued to initiate court activity. In January 1999 the support enforcement division cited the defendant for contempt, seeking enforcement of the $80 per week order. The citation resulted in three court dates but no resolution of the matter. In March 1999 the plaintiff filed a contempt citation against the defendant, attempted to subpoena information regarding his disability payments and pension and filed a motion for articulation requesting the court "to clarify the amount of child support and any accrued arrearages." This, too, failed to achieve a resolution — the file notation states: "Defendant appeared and was excused by the court (Zarella, J.)".
In March 2000 the defendant moved to modify custody seeking primary residence with him for Stephanie and Erin. Judge Kaplan granted the motion, ordering primary residence with the father for the two older daughters with the youngest remaining with the mother. Thereafter, Family Support Magistrate Steele modified the child support order to zero. Specifically, on April 25, 2000, Magistrate Steele ordered "that neither party shall pay support to the other" and found an arrearage of $319.60 owed by the defendant father, which he was ordered to pay at $10.00 per week.
On October 21, 2001 the plaintiff mother filed an application for ex parte temporary injunction, the gist of which was to modify the primary residence of Erin to be with the plaintiff mother. This motion was denied (Graziani, J.). However, on November 13, 2001 Judge Graziani granted a more conventional motion to modify to switch primary residence of Erin back to the plaintiff mother. No action was taken at that time regarding child support.
It was not until April 2003 that the plaintiff finally moved to modify the child support order. By this time, not only were both Kaitlynn and Erin residing with her, but Stephanie had reached majority. Again the plaintiff attempted to subpoena extensive financial information from the defendant. Her application for subpoena was initially denied, but subsequently granted on the date of the first court hearing.
The original request was denied by Judge Klaczak, with the following notation: "Not appropriate for short calendar, if parties cannot reach agreement she may present the request to presiding family judge." Since the subsequently filed motion to modify was in the jurisdiction of the family support magistrate division, the subpoena request was renewed at the first hearing date on that motion and was then granted.
There were several delays over the next few months. The defendant reported that he was no longer receiving long-term disability payments but was receiving social security disability payments (SSD) and that the children were entitled to dependant benefits. At the July 28 hearing he produced documentation from the Social Security Administration to the effect that he was receiving $1,108.70 per month and that Erin and Kaitlynn were each getting $277.00 per month from his award. The documentation indicated that the defendant was eligible for disability payments since January 1998 but failed to disclose whether the defendant received a retroactive payment, whether any lump sum retroactive payment was made to the children or whether they were entitled to such a payment. Furthermore, the defendant failed to comply with the subpoena. Thereupon, the court granted the plaintiff's motion to modify and issued a temporary order of $169.00 based on the full SSD payments and denied any offset based on the payments directly to the children "due to the defendant's failure to comply with the subpoena and give appropriate information to the court . . . the temporary order remains until the defendant fully complies with the subpoena and a full hearing can be held."
The defendant appealed these orders as well as the orders granting the plaintiff's request to issue subpoenas. The appeal was dismissed by the Superior Court (Graziani, J.) because it was flied beyond the statutory period allowed for such appeals.
On September 23, 2003 the defendant served on the plaintiff the pending motion to modify the $169.00 order. His motion claims as grounds a substantial change of circumstances due to recent additional "major surgery" and that the existing order substantially deviates from the child support guidelines by allocating a disproportionally high percentage of his SSD to child support and failing to offset the direct dependent benefit payable to the children. The defendant failed to claim in his motion, but subsequently claimed orally, that the middle child, Erin, has now reached majority.
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); Pribanic v. Pribanic, 17 S.M.D. (Strada, F.S.M., June 27, 2003); Mansfield v. Haynes, 12 S.M.D. 51, 52 (1998); Danford v. Symonds, 12 S.M.D. 32, 33 (1998); Monahan v. Monahan, 4 S.M.D. 223, 227 (1990).
The moving party 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); Richard v. Richard, supra, 23 Conn.App. 62; Harlan v. Harlan, 5 Conn.App. 355, 357, 496 A.2d 129 (1985); Stanton-Perez v. Perez, 17 S.M.D. (Baran, F.S.M., Oct. 15, 2003); Moffit v. Moffit, 12 S.M.D. 41, 42 (1998); Danford v. Symonds, 12 S.M.D. 32, 33 (1998); Kraynak v. Godfrey, 5 S.M.D. 250, 251 (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); see also Prial v. Prial, 67 Conn.App. 7, 11, 787 A.2d 50 (2001); Stanton-Perez v. Perez, 17 S.M.D. (Baran, F.S.M, Oct. 15, 2003).
"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).
The hearing on the defendant's motion to modify occupied four court days extended over several months. The testimony dealt almost exclusively with the defendant's first ground — that his disability had worsened because of his surgery and restoration of the credit for the SSD dependent benefit paid to the child. The defendant failed to sustain his burden of proof on this claim.
At the time of the 2003 modification, the defendant was receiving SSD and had been determined totally disabled by the Social Security Administration. The defendant's claim that his condition has deteriorated is, in a sense, a claim that he is more totally disabled now than he was in 2003. He misconstrues the basis of the 2003 modification as well as his burden of proof. In 2003 as at present, the issue is not whether or not the defendant qualifies for disability benefits from Social Security, but whether or not he has additional, undisclosed income. The 2003 order considered, in part, his failure to meet his obligation to make full and candid financial disclosure, and his failure to comply with disclosure and production requirements, thus frustrating the court's information gathering function.
This situation has only marginally improved. The defendant's testimony continued to be evasive, self-serving and lacking in credibility regarding instances suggesting obtaining unreported income. The defendant holds fourteen credit cards. The State and the plaintiff attempted to subpoena the applications for credit to determine what income was disclosed. Additionally, the court ordered the defendant to produce the applications. For months, the defendant stalled and frustrated all attempts to obtain this disclosure.
It is up to this court, as the trier of fact, to determine the credibility of witnesses and to weigh 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); Raja 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). "It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Torres v. Waterbury, 249 Conn. 110, 123, 733 A.2d 817 (1999)." De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 431-32, 849 A.2d 382 (2004). "It [is] the sole province of the court to determine the credibility of the witnesses and the weight to be given to the evidence. The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it." Petronella v. Venture Partners, Ltd., 60 Conn.App. 205, 212-13, 758 A.2d 869 (2000), appeal dismissed, 258 Conn. 453, 782 A.2d 97 (2001); Nashid v. Andrawis, 83 Conn.App. 115, 118, 847 A.2d 1098 (2004). 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, 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 by even 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).
However, the defendant has a second, indisputable basis for seeking modification. The middle child, Erin, has emancipated. Since 1972 the age of majority in this State is eighteen. General Statutes § 1-1d. Connecticut law provides that allocated support obligations cease by operation of law when a child reaches majority. Hunter v. Hunter, 177 Conn. 327, 416 A.2d 1201 (1979); Kennedy v. Kennedy, 177 Conn. 47, 411 A.2d 25 (1979); Sillman v. Sillman, 168 Conn. 144, 148-51, 358 A.2d 150 (1975); Gaudette v. Gaudette, 10 S.M.D. 213, 215 (1996); Johnson v. Johnson (II), 5 S.M.D. 144, 155 (1991). However, General Statutes § 46b-84(b) extends the support obligation for an "unmarried child of the marriage" who is a full-time high school student residing in the home of a parent to age nineteen or completion of the twelfth grade, whichever first occurs. This provision is limited to cases where the decree of dissolution of marriage, legal separation or annulment entered on or after July 1, 1994.
Erin reached age 18 on March 17, 2004. There is no evidence that she presently lives at the home of the custodial parent and attends high school. In fact there were unrefuted claims that she had left the plaintiff's residence. Nor is there any written agreement providing for post-majority support.
General Statutes § 46b-66 allows the court to order and enforce post-majority support pursuant to a written agreement of the parties. Hirtle v. Hirtle, 217 Conn. 394, 399, 586 A.2d 578 (1991); Albrecht v. Albrecht, 19 Conn.App. 146, 562 A.2d 528 (1989), cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). Post-majority support may also be ordered for children with mental or physical disability, General Statutes § 46b-84(c) and under certain circumstances for children attending post-high school education, General Statutes § 46b-56c (Public Act 02-128).
"When a support order provides for unallocated child support for more than one child, the child support amount is not automatically subject to a pro rata reduction when one of the children reaches majority or otherwise emancipates . . . The obligor, therefore, remains liable for the full amount of the order for the support of the remaining minor [child] . . . If the obligor feels that the child support amount is excessive for the remaining minor [child], then the proper remedy is to file a motion to modify." Labrie v. Labrie, 16 SMD 32 Conn. L. Rptr. 222 (Baran, F.S.M., May 20, 2002); see also Delevett v. Delevett, 156 Conn. 1, 3-5, 238 A.2d 402 (1968); Gillespie v. Gillespie, 8 Conn.App. 382, 386-87, 512 A.2d 238 (1986). On this sole basis, the court is constrained to hold that there is a substantial change of circumstances and the defendant is entitled to a modification of the support order. The remaining issues raised by the parties will be discussed below in establishing the new support order.
In determining a new support order for the remaining minor child Kaitlynn the Child Support Guidelines "require the court to first determine the presumptive support order prior to applying any deviation criteria. Regs., Conn.State Agencies § 46b-215a-3-(a); Arias v. Macedo, 14 S.M.D. 6 Conn.Ops. 1335, 2000 Ct.Sup. 12916 (2000)." Perez v. Vazquez, 16 S.M.D. 2002 Ct.Sup. 5046 (2002). In order to apply the Child Support Guidelines to determine the presumptive support order, the court must first ascertain the incomes of each of the parties. This task is complicated by the plaintiff's claim that the defendant enjoys additional unreported income. If this claim is proven, such income is includable in the guidelines calculation. However, in order to complete the calculation, the court must not only conclude that there is additional income but also must quantify it.
Each party submitted a sworn financial affidavit disclosing social security disability payment as the primary source of income. The plaintiff mother listed $209.11 per week as both the gross and net income. The defendant claimed a weekly gross income of $394.56 with a net of $379.07 per week. Although the defendant provided no updating documentation to confirm the disability determination or the amount of the award, the plaintiff submitted a copy of the 1999 disability award. (Plaintiff's Exhibit H). The file also contains statements in July 2003 introduced during the hearing on the plaintiff's earlier upward modification. The amounts shown on the financial affidavit seem generally consistent with the evidence and testimony at trial. Social Security Disability payments (SSD) are includable as income for child support purposes. Regs., Conn. State Agencies § 46b-215a-1(11)(A)(ix); Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231 (1998).
The failure of the defendant to comply with the rather simple obligation of providing updating documentation from the Social Security Administration to establish the exact amount of his award and the child's benefit is emblematic of his evasiveness and failure to provide proper financial disclosure. The conclusion that the financial affidavit is a fairly accurate total of the amount he receives plus the dependent benefit is derived from the 2003 documentation, indicating the defendant's then award to be $1,108 per month gross plus $277 per month dependent's benefit to each of the then two minor children, making a total of $1,652 per month or $383.54 per week. The court also considered snippets of testimony during the hearings and some confirming documentation, such as the amount of the monthly deposits to his checking account from Social Security, State's Exhibit V, which was subpoenaed and offered by the support enforcement officer.
Section 46b-215a-1 of the Regulations of Connecticut State Agencies provides in relevant part: "Definitions: As used in sections 46b-215a-1, 46b-215a-2a, 46b-215a-3, 46b-215a-4a and 46b-215a-5a . . . (11) `Gross income' means the average weekly earned and unearned income from all sources before deductions, including but not limited to the items listed in subparagraph (a) of this subdivision, but excluding the items listed in subparagraph (b) of this subdivision. (A) Inclusions: The gross income inclusions are: (i) salary; (ii) hourly wages for regular, overtime, and additional employment up to a maximum of 52 total paid hours per week; (iii) commissions, bonuses and tips; (iv) profit sharing, deferred compensation and severance pay; (v) employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of or in addition to salary or wages); (vi) military personnel fringe benefit payments; (vii) benefits received in place of earned income including, but not limited to, workers' compensation benefits, unemployment insurance benefits, strike pay and disability insurance benefits; (viii) veterans' benefits; (ix) social security benefits (excluding Supplemental Security Income [SSI]), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined; (x) net proceeds from contractual agreements; (xi) pension and retirement income; (xii) rental income after deduction of reasonable and necessary expenses; (xiii) estate or trust income; (xiv) royalties; (xv) interest, dividends and annuities; (xvi) self-employment earnings, after deduction of all reasonable and necessary business expenses; (xvii) alimony being paid by an individual who is not a party to the support determination; (xviii) regularly recurring gifts, prizes, and lottery and gambling winnings (except as provided in paragraph [B] [iv] of this subdivision); and (xix) education grants (including fellowships or subsidies that are available for personal living expenses).
The court finds that based on a fair preponderance of the evidence that the defendant enjoys income in addition to his social security benefits. However, despite strenuous efforts by the plaintiff and the State, there is not sufficient evidence for the court to determine the amount that should be added for purposes of calculating a presumptive support order. The income seems to derive primarily from irregular ventures by the defendant. The fact that the defendant refuses to acknowledge this income, much less document or report it, combined with his modus operandi of frustrating inquiry precludes designation of an amount for use in the precise calculation necessary under the child support guidelines. However, there may be other appropriate ways to recognize this situation, which the court will return to below.
The support enforcement officer prepared a child support guidelines worksheet based on the social security disability awards to both parties. The calculation fields a basic child support obligation of $140.00 per week from both parents, with the defendant's share being $89.60. The guidelines also provide an adjustment against the obligor's share for the amount of the dependent's benefit. Regs., Conn. State Agencies § 46b-215a-2a(6) and (7); Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231 (1998). In the present case the adjustment would exceed the obligor's presumptive child support order leaving no net payment due as long as the dependent's payments are forthcoming.
The State and the plaintiff oppose any modification in part because the defendant father has yet to comply more than cursorily with the disclosure requirements. His financial affidavit and testimony continue to be less than candid, and after ten months from the first hearing on the motion to the closing of evidence, he has yet to fully comply with the subpoenas or the court's disclosure orders. His excuses are not credible. Nonetheless because there is now only one remaining minor child, the court believes that the continued operation of the existing order would be unfair. Although the defendant has still not provided proper and full financial disclosure, the court recognizes that the State has diligently pursued and obtained some of the missing information and additional findings or reasonable inferences can be drawn from the four days of testimony.
For example, after being ordered to produce copies of his lease applications, he produced the written lease, but not the application. After months of stalling on providing copies of his credit card applications, and after the court provided him an additional three-month window to obtain these documents, his submission was minimal, consisting primarily of those applications and correspondence that the State was finally able to obtain through its direct subpoenas to the banks and credit companies. (Note, for example, that Defendant's Exhibit 14 is merely a photocopy of State's Exhibits Q and R; Defendant's Exhibit 15 is a photocopy of State's Exhibit T even to the extent that it includes a copy of the subpoena). Some of the credit card issuers refused to comply with the State's subpoenas, citing confidentiality requirements. It is noteworthy that the responses indicate that the information would have been provided if the customer (the defendant) requested it. For example, Cross Country Bank, in refusing to honor the State's subpoena, stated, in its letter of May 27, 2003 (State's Exhibit S): "Cross Country Bank's CUSTOMER (sic) may request his or her account information by sending a written request to our Legal Department at the above address. The Bank will provide the requested records to that CUSTOMER during the ordinary course of business." Notwithstanding that the defendant was afforded an additional three months to obtain the records, he never produced the application from Cross County Bank.
The plaintiff has consistently claimed that notwithstanding the Social Security determination the defendant is not disabled. She believes him to be a malingerer. She claims that he maintains unreported employment for remuneration; that he has an ability to pay child support based on earning capacity; that any inability on his part to realize his full earning potential is due to his own self-imposed actions; and that he continues to receive contributions from his parents and domestic partner, all of which should be considered in determining the child support order.
The plaintiff relies on Tevolini v. Tevolini, 66 Conn.App. 16, 783 A.2d 1157 (2001), to support her argument that in spite of the disability determination the court should either find that the defendant enjoys actual although unreported income, or alternatively impute an earning capacity to him. The Tevolini court held that the social security award was not determinative of the defendant's disability and that the plaintiff could not be denied an opportunity to explore the issue of the defendant's health at trial. "We conclude that the [trial] 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 . . ." Id., 30. See also Fournier-Lefebre v. LeFebvre, Superior Court, Judicial District of Windham at Putnam, Doc. No. FA-01-0067046, 2004 Ct.Sup. 610 (Swienton, J., Jan. 6, 2004) ("Although the plaintiff is presently receiving social security disability, there was no credible evidence to indicate her inability to obtain any type of employment either at present or in the future"); Suchinski v. Conely, Superior Court, Judicial District of Waterbury at Waterbury, Doc. No. FA02-0172508, 2003 Ct.Sup. 14104 (Leheny, J., Dec. 9, 2003); Rio v. Rio, Superior Court, Judicial District of Middlesex at Middletown FA-03-0100766, 2003 Ct.Sup. 13141 (Aurigemma, J., Nov. 6, 2003); Santoro v. Santoro, Superior Court, Judicial District of Hartford at Hartford, Doc. No. FA 95-0546022, 33 Conn. L. Rptr. 418, 2002 Ct.Sup. 16399 (Robaina, J., Dec. 13, 2002).
Evaluation of the earning capacity claim requires a look into the history of this case. Shortly after the plaintiff filed her complaint seeking dissolution of the marriage the parties appeared in court for pendente lite orders. The court, Bishop, J., entered a pendente lite child support order of $195.00 per week on January 27, 1997. The defendant father, according to his financial affidavit, was working for Wells Fargo Company earning $612 per week in gross income. The net was listed on his financial affidavit as $428.25 but the child support guidelines computation apparently relied upon by the pendente lite court lists his net weekly income as $485.83. The defendant was a central office supervisor with about twenty-two employees under his supervision. The job entailed monitoring computers which tracked fire and security alarms throughout the east coast. Transcript, 5/4/2004, pp. 30-32, Plaintiff's Exhibit B.
On January 24, 1998 this employment ended allegedly because of the defendant becoming disabled. He was diagnosed as having degenerative disc disease and lumbar and cervical sprains. In July 1998, the defendant reported that he was receiving long-term disability payments of $297.05 per week gross, with a net of $245.32. As the case approached trial, the defendant reported that the long-term disability payments had been halted "due to insurance company infighting." On January 17, 1999 he was notified of his SSD award, retroactive to July 1998. In February 1999, he resumed receiving long-term disability payments from The Hartford Insurance Group.
This assertion is memorialized in the proposed orders submitted by the defendant.
In summer 1992 The Hartford Insurance Group undertook a review of the disability award to Mr. Flagg. This review included video surveillance of the defendant. The claim examiner found after review of the video reason to believe that the defendant was "performing activities beyond his self-reported capabilities." The claim examiner then forwarded the video to the defendant's doctor, W.J. Waldman, who had by then been treating the defendant for five years and provided a statement of disability. After reviewing the surveillance tapes, the doctor notified the claim examiner that the defendant could resume full-time work at his usual occupation. Plaintiff's Exhibit C.
The claim examiner directed the following inquiry to the doctor: "Based on his observed level of activity [in the video] and the attached job description, would you agree that Mr. Flagg retains the functional capability to return to full-time work in his occupation as a central station supervisor?" The doctor's written response: "Yes."
The insurance company also dispatched an investigator who conducted an extensive interview with the defendant. The entire investigation was then reviewed by a clinical case manager. On September 19, 2002 the defendant was notified that his long-term disability benefits were terminated. The notice stated, in part: "Based on your observed level of activity, it appeared that you were capable of resuming employment in your own occupation, as you were observed: sitting during a 20-mile road trip; walking without the aid of devices; driving; and bending, squatting, standing, lifting, reaching and performing fine manipulation while constructing a screen porch enclosure . . ."
"The results of this analysis conclude that, in addition to possessing the functional capacity needed to return to full-time work in your own occupation, you also possess the functional capacity needed to perform the occupations of: Supervisor of Protective Alarm Operations; Surveillance System Monitor; Laboratory Sample Carrier; Chart Account Clerk; Survey Worker; and Checker I. All of these occupations are sedentary and light in physical demands, and they are prevalent in the national economy and pay gainful wages." Plaintiff's Exhibit A.
Additional evidence came forth from the testimony. The defendant regularly attends amusement parks such as Six Flags and King Richard's Fair. The defendant claims that his attendance at such parks is occasional, that it is primary for therapeutic use of the water park and to provide a venue for visitation with his children. The plaintiff claims that his attendance at various amusement parks is frequent, that at least on some occasions he has distributed T-shirts, and that on some occasions he participates in rides such as the roller coaster.
On direct examination, the plaintiff asked: "Ever have the tendency to ride the roller coaster" A: "Not in recent years." Q "Do you currently possess a picture of you and Mr. Turner on the roller coaster?" A: "No" Transcript, 5/4/2002, p. 39. On cross-examination, by his attorney: Q "So in the last several months have you gone on roller coasters or rides or anything of that nature?" A: "Absolutely not." (Emphasis added.) In his statement to the insurance investigator the defendant admitted that he "tried" riding the roller coaster, which he claimed occurred with his children in the early days of his disability.
The defendant also participates with his domestic partner in scheduling "events" or large social gatherings. Although the partner, Mr. Turner, testified to the effect that he does most of the work himself without assistance from the defendant, the plaintiff introduced evidence of an active website and e-mail correspondence, Plaintiff's Exhibit D, and print-outs of pictures of a robust appearing Mr. Flagg posted to the website. Plaintiff's Exhibit E.
The defendant offered testimony and evidence to refute the plaintiff's claims. The defendant's own testimony in this regard is not credible. His witness, Mr. Turner, is, if possible, even more hostile and resentful of the plaintiff than is Mr. Flagg. Notwithstanding repeated admonition by the court, Mr. Turner insisted on embellishing his answers with his observations or opinions on the Flagg marriage and relationship. This only served to diminish his credibility.
The defendant also introduced four medical "notes." The handwritten notes from Dr. Seetharama and Neurosurgeons of Central Connecticut, Defendant's Exhibits 1 and 2 confirm that he had surgery on October 13, 2003 but do not state that he is disabled or provide a diagnosis, prognosis or explain treatment. The note from Johnson Memorial Hospital is signed by a physical therapist, not a physician. It does describe chronic low back pain suffered by the defendant. While not describing the defendant as disabled, it describes a number of symptoms that limit his mobility. Defendant's Exhibit 7. Only the letter from Dr. Kathleen Abbott dated April 9, 2004 states flatly that the defendant is disabled and unable to return to work. Defendant's Exhibit 6.
Of the defendant's evidence, only Dr. Abbott's opinion is persuasive. However, the opinion of Dr. Abbott and the physical therapist rely, at least in part, on subjective reaction of the defendant, including his own reports of pain, immobility, drowsiness and the like. This is outweighed by evidence that, while claiming disability going back to 1998, the defendant has engaged in various activities that contradict his claimed limitations and those set forth by the medical reports, that The Hartford Insurance Group, after an extensive investigation including surveillance, found him able to work, and finally that he engages in robust activities and portrays a vigorous appearance when he believes "the coast is clear." The court agrees with the plaintiff and the claims examiner of the long-term disability carrier that the defendant is not disabled, and is able to work full-time, although with restrictions, either at his former occupation, or a number of equivalent positions.
The court concludes after weighing all of the evidence that the plaintiff has established a sufficient factual basis to claim a deviation based on additional earning capacity of the defendant pursuant to the child support guidelines deviation factors. Regs., Conn.State Agencies § 46b-215a-3-(b)(1)(B).
However, recent legislation prohibits the court from deviating by reason of earning capacity when the obligor receives specific types of public assistance benefits. The statute provides that "when a party has been determined by the Social Security Administration . . . to qualify for disability benefits under . . . the Social Security disability 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 Act No. 03-130. It is undisputed that the defendant has qualified for SSD benefits and continues to receive them. Although a factual basis exists for the court to find additional earning capacity, the Act precludes the court from granting a deviation on this basis. Lively v. Barnaby, 18 S.M.D. 2004 Ct.Sup. 14329, 14333 (2004). Even if the court were to concluded that the defendant's SSD was obtained fraudulently, the Act contains no exception, and the court would be barred as a matter of law from granting such a deviation.
Public Act No. 03-130 provides in relevant part:
(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 Pgram, 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.
Representative Stone, at the May 20, 2003 public hearing on the act stated: "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 as computed [sic] income to the obligor . . . It takes this disability income out of the mix for determining child support . . . This bill is a common sense bill to what is, at times, a very difficult problem . . . I think it's 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. 3459-60, Remarks of Representative Christopher R. Stone.
"This legislation would clarify that, if an obligor (i.e., non custodial parent) has been determined to be disabled by an agency such as the Social Security Administration or the state, a family support magistrate applying the given Child Support Guidelines shall be unable to ignore this determination by imputing earning capacity to the obligor as a deviation criterion." Conn. Joint Standing Committee, Judiciary, Report No. 590.
The Public Act does not preclude the court from considering actual income received by the defendant in addition to his social security award in calculating child support. There is some circumstantial evidence that the defendant enjoys additional income. The plaintiff suggests that on occasion he sells T-shirts at amusement parks, a claim denied by the defendant. She also suggests that he helps his partner with the rental management business and is compensated therefore. The prolonged attempt to secure applications for his fourteen credit accounts was mostly futile. However, two of the applications disclosed income claims somewhat above the total of his social security income. State's Exhibits K and N. The subpoenaed records of his bank account also reveals modest amounts of deposits over and above his social security deposits. The most recent month disclosed showed total deposits of $541.53 more than the SSD deposit. State's Exhibit U.
The clear language of the statute allows actual earnings to be considered for calculating child support not withstanding the disability determination by the other agency. In addition to the unambiguous language, the legislative history, including proponent comments at public hearings support the inclusion of such income. For example, the report of the judiciary committee summarizes the written testimony of Raphael L. Podolsky, Legal Assistance Resource Center of Connecticut, Inc. as follows: "This legislation attempts to resolve these problems by precluding any such persons from having the earning capacity imputed onto them under a given deviation criterion. The legislation will apply only where a government agency has made determination of a disability. The bill shall not in any way preclude the counting of actual income earned by a disabled person for the purposes of calculating child support liability." (Emphasis added.) Conn. Joint Standing Committee, Judiciary, Report No. 590.
The following colloquy occurred regarding the T-shirts:
MS. FLAGG: Two Sundays ago you were at Six Flags in Agawam, Mass. selling t-shirts.
MR. FLAGG: No.
MS. FLAGG: You weren't selling red t-shirts that said "Out in the Park"?
MR. FLAGG: No.
MS. FLAGG: Six Flags.
MR. FLAGG: Didn't sell one t-shirt.
Transcript 10/7/03, p. 9.
Although the plaintiff was unable to obtain an admission by the defendant the plaintiff's statements including significant detail, including the color and wording of the shirts, and the specific date when the activity occurred.
There are additional bits of evidence that are inconsistent with the defendant's claim that his only income is SSD and consistent with the plaintiff's accusation that he enjoys unreported and hidden income. His most recent financial affidavit lists weekly expenses of $540.25 which would indicate that he spends almost double his net SSD not even including the child support withholding order. This has been a consistent pattern with the defendant dating back to the dissolution judgment. The court will return to this point shortly.
One additional inconsistency pertains to the credit cards. It strains credulity to believe that the defendant was able to obtain credit fourteen times with SSD as his only income source. The defendant claims some of the credit accounts pre-date the divorce, but most of them have been acquired subsequently. Furthermore, the defendant claims all of these accounts are now inactive because of non-payment. Transcript, 5/6/2004, p. 49. Yet the most recent bank account statement reveals payments on no less than ten of the credit accounts in amounts ranging from $10 to $50 each. Prior statements confirm a pattern of keeping these accounts active.
Unfortunately, most of the documentation came into evidence at the last hearing depriving the plaintiff a fair opportunity to review the documents and to cross-examine the defendant, and also depriving the defendant an opportunity to explain the inconsistencies. However, the tardiness is the fault of the defendant who neglected to provide this information when originally ordered. The court is entitled to draw reasonable inferences from the information disclosed and the defendant's resistance to disclosing it. The court concludes that the defendant does receive monies in addition to his SSD award.
However, the evidence is insufficient to determine the amount and timing of the additional income. As stated earlier, the inability to quantify the additional income precludes the engagement of the precise calculation required by the child support guidelines.
The court now returns to the riddle of how the defendant manages to regularly spend double his reported income. Part of the answer may be the inference that at least some of his activities earn compensation. The clue to the source of the rest of his income is found in the transcript of the dissolution hearing. Judge Steinberg held that the defendant closed his spending gap by receiving regular recurring income from his parents of at least $300 per week which "can be considered by the court in establishing child support or alimony payments." Transcript, 11/20/1998, p. 2.
A close review of the testimony on this modification reveals that the defendant continues to receive regular recurring payments from his parents as well as from his domestic partner. Mr. Turner testified that he obtained what he termed loans from his mother as well as the defendant's parents. Transcript, 5/6/2004, p. 10, 15. The defendant admitted that his father purchased a vehicle for him, contributes to the rent, and "occasionally" provides other financial assistance. Transcript, 5/6/2004, p. 53-55.
Judge Steinberg's 1998 ruling that the financial contributions of the defendant's parents are includable as income, which was not appealed, is the law of the case and continues to apply. There is also precedent for such treatment. Zahringer v. Zahringer, 262 Conn. 360, 815 A.2d 75 (2003) plaintiff had access to parents' checking account); Spatafora v. Spatafora, 2003 Ct.Sup. 8453-11 (Vasington, J.T.R., July 25, 2003); Ablondi v. Ablondi, 2003 Ct.Sup. 8692 (Harrigan, J.T.R., July 1, 2003) (gift from mother); Augustine v. Augustine, 2001 Ct.Sup. 17125 (Shay, J., Dec. 28, 2001); Robben v. Robben, 2001 Ct.Sup. 6617 (Harrigan, J.T.R., May 10, 2001); see also Unkelbach v. McNary, 244 Conn. 350, 360, 710 A.2d 717 (1998). Financial assistance from Mr. Turner may be considered under the child support guideline deviation covering regularly recurring gifts of a domestic partner. Regs., Conn. State Agencies § 46b-215a-3-(b)(1)(D). The court finds that continuing financial contributions of the defendant's parents, Mr. Turner, and Mr. Turner's mother all directly and extraordinarily reduced the defendant's living expenses in a manner that enhances his ability to pay reasonable child support.
Under the 1999 revised Guidelines, contributions or gifts from a domestic partner "are to be treated . . . in a manner different from the manner outlined in Unkelbach . . . Under the revised guidelines, regularly recurring contributions from a domestic partner are treated as deviation criteria . . . but only when `the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts.' Child Support Guidelines Section 46b-215-3(b)(1)(D)." Iezzi v. Iezzi, 1999 Conn.Sup. 14051 (New Haven Superior Court docket no. FA97-0401402, Stevens, J., Oct. 26, 1999).
Although Public Act No. 03-130 precludes the court from deviating based on earning capacity, it does not preclude the court from considering any other deviation factors. Lively v. Barnaby, 18 S.M.D. 2004 Ct.Sup. 14329, 14338 (2004).
Considering all of the facts and circumstances of this case, including prior holdings of the original trial court, this court finds that strict application of the child support guidelines is inequitable and inappropriate in this case. The court finds that deviation is warranted under the following criteria: regular financial contributions of the defendant's domestic partner, Regs., Conn. State Agencies § 46b-215a-3-(b)(1)(D); the best interests of the minor child, Regs., Conn. State Agencies § 46b-215a-3-(b)(6)(B); and other equitable factors including but not limited to continuing financial contributions by the defendant's parents and other unquantified additional income, Regs., Conn. State Agencies § 46b-215a-3-(b)(6)(C) and § 46b-215a-3-(b)(1) (introductory paragraph).
In determining the appropriate support order the court has considered all of the factors set forth in General Statutes § 46b-84(d) and the child support guidelines. The court has also considered the provisions in the guidelines for an adjustment against the obligor's share for the amount of the dependent's benefit. Regs., Conn. State Agencies § 46b-215a-2a(6) and (7); Jenkins v. Jenkins, 243 Conn. 584, 704 A.2d 231 (1998). While the court feels it is no longer fair to continue to deprive the defendant of consideration of the direct dependent benefit, the court, as part of its deviation, will direct that rather than adjusting against the total order, that in this case the defendant be given an automatic monthly credit for the amount of the direct benefit paid for Kaitlynn. In part, this is because in view of the termination of the defendant's long-term disability benefit, it is incumbent to protect the child's financial interest by avoiding the artificially low net order that would remain if the defendant's SSD award is likewise terminated. The court will also deviate by rendering a monthly rather than a weekly order to expedite convenient withholding from the social security award. Based on those factors and the deviation stated, the court finds that $650 per month is a fair, equitable and appropriate support order for Kaitlynn plus $100 per month on the arrearage.
The motion to modify is granted. The court orders the defendant to pay $650.00 per month in current support for the remaining minor child plus $100.00 per month on the arrearage effective retroactive to August 31, 2003 (the date that the subpoenaed financial information was finally submitted). He is to be credited with the actual amount of the direct dependent benefit for Kaitlynn. Each parent is ordered to independently verify the amount of the benefit to the support enforcement office. The credit will commence from the September 2004 payment forward and in no event will exceed the current support order for each month. The support enforcement division is directed to recompute the arrearage based on the retrospective effect of this modification and notify both parties 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.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate