Opinion
No. FA 97 0160109
July 11, 2003
SUPPLEMENTAL MEMORANDUM OF DECISION
The original decision in this case, which was dated October 23, 2002, denied motion #236 filed by the plaintiff, Carole H. Spivey, to modify the amount of unallocated alimony and support to which the parties had agreed in their separation agreement of July 2, 1998, which was incorporated into the decree of dissolution. The parties agreed not to seek modification "except in the event either party has a substantial decrease in income." The earlier decision ruled that the income of the defendant, Steven C. Spivey, had decreased, but not so substantially as to warrant modification.
Thereafter, the plaintiff moved (#245) for reargument, which was granted and heard on March 17, 2003. In her motion to reargue, the plaintiff contended that she was seeking relief because the formula that the parties devised for the calculation of alimony and support had resulted in the plaintiff, with whom the parties' two minor children lived for the most part, owing money to the defendant. In addition, the plaintiff urged that the use of the formula in the separation agreement was causing a substantial deviation from the child support guidelines. General Statutes § 46b-215a, Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies.
Section 2.1 of the separation agreement, which was incorporated into the decree of dissolution, provided that the defendant would pay "unallocated alimony and child support in an amount equal to the difference between the wife's gross income from employment and that sum equal to 50% of the combined gross income from employment of both the husband and the wife."
In their separation agreement, the parties agreed to "joint legal and physical custody" of the children, but they reside with their mother, the plaintiff, subject to visitation with their father, the defendant, on alternate weekends and every Tuesday night.
Upon reconsideration, the decrease in the defendant's income, combined with the fact that the formula now requires that the plaintiff, with whom the children primarily reside, now owes the defendant alimony and support, has led to a new conclusion that modification of alimony and support is warranted. The parties agree that if the defendant's income is less than that of his former wife, he owes her nothing, despite the fact that the children live with her, subject to visitation by the defendant. The attorney for the defendant agreed that this turn of events was not contemplated when the divorce took place, as it was assumed that the husband would always be earning more than the wife and hence would be paying her alimony and child support. "And, that was the premise, and that is the basis, and that is why we are maintaining that this agreement, even though it was always contemplated that Mr. Spivey would earn more than Mrs. Spivey, and that's why the inartfulness in the draftsmanship, and an error on counsel's part to so contemplate."
The attorney for the defendant summed up the current situation very succinctly by noting: "Any time Mr. Spivey makes less money than Mrs. Spivey she, in fact, owes him money."
In any event, a rethinking of this case, as a result of the motion to reargue, leads to the conclusion that there has indeed been a "substantial decrease of income," not simply because the defendant's income has decreased, but also because of the impact of the formula on the part of the plaintiff herself. It is true that the plaintiff's gross monthly income from all sources of employment between the time of the divorce and the hearing in July of 2002, went up approximately $600 a month. On the other hand, instead of receiving about $2,000 a month from her former husband, she not only does not get any money from the defendant any more, but actually owes him money for alimony and child support. This appears to be a substantial change in circumstances in terms of decreased income. Thus, a modification of the alimony and child support agreement is warranted.
As to the amount thereof, General Statutes § 46b-82 and § 46b-84, alimony and child support, respectively, have been considered. In terms of the child support guidelines, it was pointed out in the earlier decision that, at the time of the divorce in 1998, Judge Tierney indicated that the defendant husband was paying more than required by said guidelines. However, the situation has now changed. Based on the formula, because the defendant is earning less than his former wife, he is not paying her any money for child support.
General Statutes § 46b-86 (a) states that unless the decree precludes modification, alimony or support orders may be modified "upon a showing of a substantial change in the circumstances of either party." In the original decision, it was pointed out that defendant's decrease in income was not a substantial change in circumstances as such.
The issue in this case is whether there has been a substantial change of circumstances which warrants a modification of alimony and child support. The defendant contends that an agreement pertaining to child support may not be modified just because it no longer complies with the child support guidelines. For this proposition the defendant cited Zahringer v. Zahringer, 69 Conn. App. 251, 793 A.2d 1214, rev'd and remanded, 262 Conn. 360, 815 A.2d 75 (2003). The Appellate Court noted that the defendant husband "has failed to illuminate with any legal authority how, if at all, the child support guidelines apply to an unallocated order for alimony and support." On the other hand, it is well recognized that: "[t]he ultimate responsibility for determining and protecting the best interests of children in family disputes rests with the trial court and not with the parties to a dissolution action." Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986). "This judicial responsibility cannot be delegated, nor can the parties abrogate it by agreement." Id., 66.
Moreover, Matles v. Matles, 8 Conn. App. 76, 511 A.2d 363 (1986), points out that even in awards of unallocated alimony and child support, there exists a component relating just to child support. "Inherent in an order of unallocated alimony and support is that some portion of the order is attributable to the payor's obligation to support the child. When the obligation to support the child no longer exists, it becomes appropriate for the trial court to reexamine the facts and circumstances of the parties as they exist at the time of such occurrence and to modify any such orders to reflect the changed circumstances. Although we have no cases exactly on point to guide us with respect to the facts in this case, our Supreme Court, in a per curiam opinion, has recognized the principle of the severability of child support from alimony where the order was for unallocated alimony and support." Id., 79-80.
In Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985), the court stated that: "Although the 1976 stipulation and judgment may have been effective to define permanently the support obligations of the divorcing parties as between themselves, neither their agreement nor the court's decree can be held binding as to their minor children, who were unrepresented during both the negotiation of the stipulation and the dissolution proceedings. Since the stipulation is merely a contract between the defendant husband and the plaintiff wife, it could not affect the minor children's right of action for parental maintenance. The divorce decree was likewise ineffective to establish conclusively the extent of the children's support rights because they were not represented when that judgment was entered." (Internal citations omitted.) Id., 267-68. This same situation occurred in the present case.
About one week after the parties appeared for reargument, the Appellate Court issued Lefebvre v. Lefebvre, 75 Conn. App. 662, 817 A.2d 750, cert. denied, 263 Conn. 921, 822 A.2d 243 (2003), which discussed visitation in the context of child support guidelines. In this present case, as noted previously, Section 3.5 of the separation agreement provides that the children shall reside with the plaintiff except on Tuesdays from after school until being redelivered to school Wednesday morning, and, on alternate weekends, Thursday after school until Monday morning when school starts again. In other words, the defendant has the children on alternate weekends, and one night, Tuesday, during each week, that is, five nights out of fourteen nights over the course of two weeks. The visitation for the father in the Lefebvre case was considerably more extensive than in the present case, yet the court in that case rejected the father's claim that he was entitled to a deviation from the guidelines. If Mr. Lefebvre could not obtain a deviation from the guidelines despite his visitation schedule, it would seem that Mr. Spivey would not be entitled to such a deviation either.
In view of this substantial change in circumstances of the parties' income, and based on the child support guidelines and worksheet submitted, the defendant is ordered to pay $300 a week child support, and a dollar ($1) alimony per year to the plaintiff, until her death, remarriage or January 31, 2010, effective July 15, 2002, the date of the hearing on the plaintiff's motion for modification, with no refunds due and owing from the plaintiff to the defendant based on the formula in the separation agreement because any such refund would inevitably have a negative impact on the child support due to the plaintiff.
So Ordered.
Dated at Stamford, Connecticut, this 11th day of July, 2003.
William B. Lewis, J.T.R.