Opinion
No. FA91-0099996S
April 13, 2005
ORDER RE MOTION TO MODIFY #215, #213 MOTION FOR CONTEMPT POST-JUDGMENT #214, 212 MOTION TO MODIFY #216
Background
Pursuant to judgment for custody and visitation, the Father was ordered to pay child support for two minor children, Jozet, d.o.b. 2/2/89 and Mathew, d.o.b. 9/28/90. Several orders have modified the original judgment. The operative order of support was entered on January 30, 1995, when the Father was ordered to pay $190 per week in current child support. In addition, the Father was ordered to pay one-half of all unreimbursed medical expenses incurred on behalf of the minor children and to provide health insurance, if available. This order was based upon the Father's gross weekly income of $649.65, net $505. The Mother had a reported gross weekly income of $91.34, net $2.34.
Thereafter, the Father moved to decrease his weekly child support obligation. On April 17, 1996 the request was denied. The court found that there was not a 15% deviation based upon the Father's gross annual income of $30,400 ($585 per week, net $474) and the Mother's gross weekly income of $174, net $94. In addition, the court found that the Father had recently received over $130,000 in actual or anticipated inheritance.
The Mother now seeks an increase in the child support, claiming that the income of the parties has changed and that the current order fails to comply with the current guidelines amount. (Motions #213 and #215) In addition, she has filed a motion for contempt alleging that the Father has not paid the court-ordered child support and that he failed to maintain health insurance. Lastly, she claims that he has failed to pay unreimbursed medical expenses. (Motion #212 and #214)
On January 19, 2005 the Mother withdrew her claim of relief seeking a finding of contempt regarding the Father's failure to maintain health insurance. The Father is self employed and does not have health insurance available to him at the present time. The applicable provision of the court order compels the Father to provide health insurance only if it is available through his employer. (Order, dated January 30, 1995.)
During the pendency of the Mother's motions, the Father filed a motion to modify, seeking a decrease in his weekly child support obligation. (Motion #216) He also filed a motion for contempt regarding issues of visitation. The visitation issues were resolved by Agreement of the parties, dated March 24, 2005.
The Father claims that he has a gross weekly income of $224, net $189. (Financial Affidavit, dated 3/23/05.) The Father works for his current wife, selling handcrafts. He claims no ownership interest in the business, called "Sun Life." His joint tax return for the year 2002, reports total business income, for both he and his wife, of $14,670, less business expenses of $10,028, and less self-employment taxes of $2,073. This produces a combined net income for the joint filers of $2,569. (The Father failed to provide complete tax returns pursuant to a lawfully issued subpoena. Specifically, he failed to provide the attachments and schedules to the tax return and provide other requested discovery.)
The Father claims weekly expenses of $460.51. (Financial Affidavit, dated March 23, 2005) The Father claims that he is able to meet his obligations by living a frugal lifestyle. He voluntarily left his manufacturing job in the year 2000, and has not actively sought employment since then. He testified that he was able to travel to Indonesia, Europe and Florida in the past two years as a result of "gifts" from his wife, using her frequent flyer mileage rewards.
The burden of proof is upon the person seeking the modification of the court order. 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 A2d 110 (1990). "When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both parties." Morris v. Morris, Superior Court, judicial district of New Haven, Docket No. FA96-0389510 (December 3, 2001, Domnarski, J.), citing Crowley v. Crowley, 46 Conn.App. 87, 92 (1997). The moving party must demonstrate that "continued operation of the original order would be unfair or improper." (Citation omitted; internal quotation marks omitted.) Richard v. Richard, 23 Conn.App. at 62. The change, if demonstrated, must be excusable, and not brought about by the moving party's own actions. Sanchione v. Sanchione, 173 Conn. 397, 407; 378 A.2d 522 (1977). When determining whether there exists a substantial change in circumstances the court considers all evidence back to the most recent court order. Borokowski v. Borokowski, 228 Conn. 729, 742; 638 A.2d 1060 (1994).
A parent's earning capacity is specifically included in a guidelines calculation of a presumptive support obligation. General Statutes § 46b-84(d). It is well established that a court may consider a party's earning capacity rather than actual income. Johnson v. Johnson, 185 Conn. 573, 576; 441 A.2d 578 (1981); Miller v. Miller, 181 Conn. 610, 611; 436 A.2d 279 (1980); Siracuse v. Siracuse, 30 Conn.App. 560; 566 A.2d 309 (1993). Failure to look for employment or choosing to work in a certain place without investigating ways to upgrade one's income does not alter a person's earning capacity. Hart v. Hart, 19 Conn.App. 91, 94-95; 561 A2d 151, cert. denied, 212 Conn. 813; 565 A.2d 534 (1989).
A guidelines calculation based upon the disclosed income of the parties produces a presumed obligation of the Father in the weekly amount of $47. Upon consideration of the documentary and testimonial evidence, and in consideration of the applicable law, including but not limited to Connecticut General Statutes, and the Regulations of Connecticut State Agencies, this Court finds as follows:
1. A guidelines calculation using the Father's last known income in manufacturing of $30,400 per year, in 1996, produces a presumed weekly guidelines obligation of $163. No additional evidence was provided to base a calculation assuming the Father resumed employment in manufacturing. Therefore, the Mother has not sustained her burden of proof demonstrating that such a change has occurred from when the Order entered, or when the court last reviewed the order on the Father's motion to modify, on April 17, 1996.
2. The change in circumstances claimed by the Father has been brought about by his own conduct as he voluntarily left his former employment. Further, he has failed to conduct a reasonable search for employment and chooses to work with his current wife selling crafts. He has not engaged in a diligent or reasonable search for re-employment in his field of expertise, or other unrelated fields. He has also failed to make any effort to investigate ways to increase his income, such as further education or job retraining. Rather, he has adjusted his living to a frugal lifestyle, and allows his current wife to provide for such extras, such as foreign and leisure travel.
3. The Father has not demonstrated that he does not have an earning capacity at least equal to his former actual earnings.
4. The presumed obligation of $47 per week, for two minor children, based upon the Father's claimed income, would not be fair, equitable, or in the best interests of the children.
5. Neither party has demonstrated that the continued operation of the existing order would be unfair or improper.
6. The Mother has entered into an orthodontia contract for treatment for the minor child Mathew, in the total contract amount of $6,000. She pays $188 per month on the bill, and has paid the total amount of $2,816, as of March 17, 2005. Pursuant to the applicable provision of the modified Judgment, dated January 30, 1995 the Mother "shall have final say in all disputed matters." No advance permission is required from the Father for medical treatment of the minor boys. The Father is responsible for half, 50% of all unreimbursed medical expenses incurred by the Mother on behalf of the minor children.
Orders:
1. The Mother's Motion for Modification is DENIED;
2. The Father's Motion to Modify is DENIED;
3. The Mother's Motion For Contempt finding is GRANTED, in part. The Father is in contempt for his intentional and willful failure to pay his weekly court-ordered child support. He is delinquent the total sum of $1,280.69 as of March 22, 2005. He shall pay this amount, plus his ongoing weekly obligation within 30 days hereof. In addition, he has failed to pay the unreimbursed medical bills in the amount of $1,408 (1/2 amount paid by the Mother of $2,816, as of 3/17/05). He shall pay to the mother the sum of $2,816 on or before October 6, 2005. In addition, he shall pay $94 per month directly to the provider, representing 1/2 of the contract amount on the remaining balance as of March 18, 2005. The Contempt is continued to May 9, 2005 to ensure compliance with the weekly order of support and lump sum payment of $1,408. In the event that he has complied with this portion of the Orders, Support Enforcement Services may excuse him from court on May 9, 2005.
Linda T. Winbey
Dated: 4/8/05