October 18, 2010
MEMORANDUM OF DECISION RE OBJECTION TO REGISTRATION
The named petitioner, Debra Frazee, and the Department of Child Support Services of Orange County, California (hereinafter "OCDCSS"), have transmitted a request for registration of an arrearage for child support, spousal support and accrued interest. The transmittal was dated in California on January 30, 2008. According to the file, the registration date with this court was March 4, 2008. Notice of the registration was served at the usual place of abode of the respondent in Simsbury, Connecticut, on March 10, 2009.
The petitioner and OCDCSS attempted to register earlier California judgments in 2004 which failed for want of service.
It appears that it took just over one year for the notice of the registration to be served on the respondent.
The respondent, by his counsel, filed an objection to the registration by letter dated March 19, 2009 and requested a hearing. A hearing was held before the court, Dee, F.S.M, on May 21, 2009. The record states in pertinent part: "Registration granted by agreement. Case continued to 9/10/09 for a full accounting from California including tax intercepts any additional payments credits."
It may be interjected at this point that notwithstanding the record that the registration was "granted by agreement" subsequently it was clear that the respondent had not abandoned his objection to the registration, but to the contrary, vigorously objected and continues to so object to this date. Over the subsequent year and a half, there have been not less than six court dates, several motions and pleadings filed by both parties, a disclosure motion, and several thick binders of documents.
The respondent filed a motion to dismiss and a "renewed motion to dismiss." The latter motion included an appendix of some seven "exhibits." Many of the subsequent pleadings and documents filed by the respondent followed this pattern of appending exhibits, usually repeating those filed in previous pleadings and adding additional multi-page documents. By the time of the final two hearings in this matter, the file contained four thick binders of documents of various sorts. The respondent filed an August 21, 2010 tome entitled "respondent's evidence opposing registration" consisting of 23 numbered tabs containing mostly multiple-page documents. Not to be out done, the petitioner filed a blue-bound book entitled "Declaration of Debra L. Frazee in support of Connecticut Registration" dated August 20, 2010 but not received by our UIFSA clerk until August 27, 2010, consisting of 38 numbered tabs and helpfully including a Table of Contents. The respondent filed another evidence dossier, this time with 27 tabs. It turns out that the first 23 tabs replicated the earlier filing, with only tabs 24-26 providing new material. A supplemental filing provided tabs 27-28 a few days before the last hearing. Both parties' submissions included copies of seven underlying orders, judgments or partial judgments of the California courts. Ironically, these documents should have been included in the registration statement submitted by OCDCSS, which filed only the last two judgments. Although proffered as "evidence" the court regards these documents as part of the underlying California record. See tabs A1-6, A25 of the respondent's evidence and tabs 1-3, 14-15, 18, 20-21, and 25-27 of the petitioner's declaration. (The petitioner's declaration also included numerous "minute orders," filings, statements and transcripts which are not in evidence except for tab 4 which was admitted during the hearing.) A subsequent footnote, and the List of Exhibits in the file, will attempt to explain how this court treated these voluminous submissions.
The marriage of the petitioner and the respondent was dissolved by judgment of the Superior Court of Orange County, California on December 18, 1995. Tab 26. The court reserved jurisdiction for a later determination of a number of disputed issues. What followed was nearly ten years of hearings, trials, various motions, discovery and a piecemeal rendition of decisions variously captioned as Tentative Decision, Partial Judgment, Further Judgment, Order After Hearing and the like. One appeal went to the California Court of Appeals. The underlying California proceedings were lengthy, complicated and confusing.
The reference is to Tab 26 in the petitioner's blue binder.
To organize the large volume of documentation and preserve appropriate parts for potential appellate review, the court, with the agreement of the parties, developed the following system. Respondent's exhibits were assigned letters. The documents in the large binders, including the amendment and supplement were presented with numbered tabs, thus in the hearing, they were designated as Respondent's Exhibit A with the tab numbers added. Thus for example, the responses to interrogatories were admitted as Respondent's Exhibit A-27. The Petitioner's exhibits were assigned the numbers relating to the tab numbers in the blue binder submitted by the petitioner. State's exhibits were assigned numbers starting with 101 to distinguish them from petitioner's exhibits. The exhibits admitted into evidence are all listed on the List of Exhibits maintained by the clerk. It was agreed by all parties that the binders would not be taken apart, but rather that all tabs not admitted into evidence would be considered as pre-marked identified exhibits (i.e. in the record for "I.D. only") but not full exhibits and not reviewed by the trial court.
In preparing this decision, the court made one amendment to the foregoing agreed plan. As explained in footnote 3 above, the trial court noticed that each party's submissions included — and often repeated — various orders, judgments and partial judgments of the underlying case in California. Under UIFSA, these documents should have been part of the original submission — and some, but not all of them were. Since these documents are part of the record in the case, this court deems those documents to not be truly evidence but part of the record. It was easier for the court — and it is suggested, easier for a reviewing court — to access these documents by referring to the bound binders For references purposes, those documents not formally admitted into evidence that are cited are referred to simply by tab number, without designation as an "exhibit." The court will retain the convention of utilizing the letter A for documents originating in the respondent's submission and numbers from the petitioner's submission. The court notes that both parties at points in the hearing claimed that the other party's submissions were either incomplete or in some way varied from the official California record. Other than Exhibit A-6, where this dispute was resolved by admission of the respondent's version, the court finds that these discrepancies are minor. Where referred to in the text, this court determined by the version chosen which one appeared more complete and accurate, and for reasons explained in this decision, any other variances are not material to the outcome.
To the contrary, the issue before this court, although pending for over one and a half years, is simple and straightforward. This is simply an objection to registration of an arrearage. Transcript, 9/2/2010, p. 12. The defendant claims only one of the eight potential defenses to the registration, that being payment.
General Statutes § 46b-213m provides: "(a) A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses: (1) The issuing tribunal lacked personal jurisdiction over the contesting party; (2) the order was obtained by fraud; (3) the order has been vacated, suspended or modified by a later order; (4) the issuing tribunal has stayed the order pending appeal; (5) there is a defense under the law of this state to the remedy sought; (6) full or partial payment has been made; (7) the statute of limitations under Section 46b-213j precludes enforcement of some or all of the alleged arrearages; or (8) the alleged controlling order is not the controlling order. (b) If a party presents evidence establishing a full or partial defense under subsection (a) of this section, a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence and issue other appropriate orders. An uncontested portion of the registered order may be enforced by all remedies available under the law of this state. (c) If the contesting party does not establish a defense under subsection (a) of this section to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order." (Emphasis added.)
Although the statute provides eight distinct defenses, the respondent herein repeatedly stated that his sole defense was payment (sub-paragraph (6)). See Transcript, 9/2/2010, pp. 13, 14, 22, 27, 29, 30, 34, 49, 50, 59, 60, and 66; and Transcript, 10/5/2010, pp. 23, 24, 27, 28, 29, 30, 50, 57, 58, and 181.
The order registered is that of the Orange County Superior Court dated August 26, 2003 and in evidence as Respondent's Exhibit A-6. With regard to the arrearage, paragraph 3 of that order states: "The total amount of arrears owed for nonpayment of the Court's support orders, payable by Respondent, GERALD E. FRAZEE, to Petitioner, DEBRA L. FRAZEE, from August 15, 1996, through May 31, 2003, inclusive of all credits due Respondent, are the sums of $68,646.63 principal, plus $16,382.90 interest, for a total of $85,029.53 arrears. Said arrears are detailed in the Orange Count (sic) Division of Child Support Services interest calculation/reapplication of payments printout dated June 23, 2003, a copy of which is continued in this Court's file." (Italic emphasis added; upper case emphasis in original.)
Paragraph 2 of the same order confirms that the payable orders for $850.00 per month for child support, $250.00 per month child care expense contribution, and spousal support of $450.00 per month "shall continue to remain in full force and effect."
The only subsequent California order is one dated August 12, 2005, in which the court granted the Respondent's motion and modified the spousal support order to zero. That order is appended to the transmittal from OCDCSS and appears, among other places, in Tab 1.
The court did not "terminate" the spousal support, but rather explicitly retained jurisdiction.
The registration transmittal alleges an arrearage of $144,202.23 as of December 31, 2007. In response to the respondent's disclosure requests and several orders of this court, OCDCSS somewhat belatedly filed an accounting. This document, in evidence as State's Exhibit 101, and entitled "Simple Report" indicates an arrearage balance due of $167,619.25 as of August 23, 2010. The exhibit further demonstrates that the child support, child care, and spousal support continued to be charged through June 2004 when all three charges ceased. California law mandates the charging of interest on the balance at 10% per annum, and the accounting adds interest charges each month through the month of July 2010.
OCDCSS failed to comply with several previous orders of this court to provide an accounting of the arrearage claim. Prior to the September 2, 2010 hearing, the court issued standing orders requiring the filing of all documents ten days before the telephonic hearing. Both Ms. Frazee and OCDCSS missed the deadline, although the documents were received prior to the commencement of the hearing. The court, in response to the respondent's motion to exclude evidence, determined that it would consider sanctions based on the degree of prejudice to the respondent and the interests of justice. Because the hearing did not conclude on September 2 and went over to a nearly full day hearing on October 5, thereby giving the respondent ample time to review the documents submitted, the Court concludes there was little if any prejudice to the respondent because of the late filing. The court imposed the relatively mild sanction of declining to include a lump sum order in the temporary arrearage payment order on September 2.
The "simple report" like much of the underlying California documentation, added both clarification and confusion. OCDCSS actually submitted three reports. The first, subtitled "All Debt Types" purports to include all charges on the account as the name would suggest. The second, subtitled "Spousal Support" appears to separately account for the spousal support charged after June 1, 2003. The third is subtitled "Child Support" purporting to separately account for only the child support and child care orders. Although there is some indication that the breakout was in response to an earlier request from this Court (see Transcript, 9/2/2010, p. 65), the effect at the hearing was to invite a significant amount of time during the testimony of Ms. Chang, the Orange County support officer, over alleged conflicts with the numbers. Transcript, 9/2/2010, pp. 30-55. As a result, the court noted that the submitted accounting was confusing or possibly misleading, Transcript, 9/2/2010, p. 60, but the court also noted that it may not matter because the August 2003 judgment definitively determined the total arrearage balance. A further review of the documentation confirms this latter view.
The California Code of Civil Procedure § 685.020 provides:
"(a) Except as provided in subdivision (b), interest commences to accrue on a money judgment on the date of entry of the judgment.
"(b) Unless the judgment otherwise provides, if a money judgment is payable in installments, interest commences to accrue as to each installment on the date the installment becomes due."
The California Code of Civil Procedure § 685.010(a) provides in pertinent part:
"[I]nterest accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied." (Emphasis added.)
In addition, the California Code of Civil Procedure § 155 provides:
"`Support order' means a judgment or order of support in favor of an obligee, whether temporary or final, or subject to modification, termination, or remission, regardless of the kind of action or proceeding in which it is entered. For the purposes of Section 685.020 of the Code of Civil Procedure, only the initial support order, whether temporary or final, whether or not the order is contained in a judgment, shall be considered an installment judgment. No support order or other order or notice issued, which sets forth the amount of support owed for prior periods of time or establishes a periodic payment to liquidate the support owed for prior periods, shall be considered a money judgment for purposes of subdivision (b) of Section 685.020 of the Code of Civil Procedure."
As explained in the case of McClellan v. McClellan, 130 Cal.App. 4th 247, 30 Cal.Rptr. 3d 5 (2005), interest accrues on the outstanding balance until the arrearage is liquidated. In the present case, the simple report shows interest added at the rate of 10% per annum on the arrearage balance. It appears that the calculation was done monthly until January 2008, whereafter a per diem rate was assessed. This court has reviewed the interest calculation and finds it to be correct.
After pending since March 2009 and particularly since two days of telephonic hearings before this court, the respondent's defense of payments is revealed as largely smoke and mirrors. He relies entirely on reference to the earlier California proceedings and the outcome of the 2002 opinion on appeal, claiming variously, offset of payments owed to him by the petitioner or allegedly made by him on behalf of the child, claimed actual payments, claimed erroneous inclusion of spousal support in the arrearage and interest calculations, and an unsupported collateral challenge to the 2003 judgment. This court finds no merit in any of these claimed defenses.
The respondent made partial payments, apparently through OCDCSS from February 1997 to November 2002. These appear in an accounting appended to the 2003 order as seen in Respondent's Exhibit A-6. The payments only covered the child support portion of the order. The respondent apparently refused to pay either the child care contribution or spousal support. The payments made total $64,078.10 and apparently are the only payments over the life of the support obligation. The respondent utilizes this total in several ways to bolster his claim that he has paid or overpaid his child support. His counsel offers a calculation of number of months times $850 to arrive at a total approximating the payments. He points to the amount of support, not including interest, which is a component part to the 2003 judgment, which happens to be $68,646.63. He blithely ignores that the same accounting states that the total charges ("curr.oblig.") were at the time $127,875.00 and that his $64,000 plus in payments were credited on the accounting. Of course his claim that he is privileged to decide to pay only the child support, and ignore the child care contribution, the spousal support and the interest, is absurd.
The simple fact is that the respondent has made no payments on this arrearage since the finding by the Orange County Superior Court on August 26, 2003. Ms. Chang's testimony was unrefuted that he made no payments to OCDCSS after that date. Transcript, 9/2/2010, p. 66. Mr. Killeen, the Connecticut support enforcement officer, testified that since the date of registration there have been no payments through Connecticut. Transcript, 9/2/2010, p. 22. The respondent, when asked directly, admitted that he has made no payments since the 2003 arrearage finding. Transcript, 10/5/2010, pp. 106 and 174.
Notwithstanding the protracted and complicated previous doings, the 2003 findings and orders are straightforward. With regard to arrearages, it should be remembered, the court found "[t]he total amount of arrears . . . payable by Respondent . . . through May 31, 2003, inclusive of all credits due Respondent, are the sums of $68,646.63 principal, plus $16,382.90 interest, for a total of $85,029.53 arrears." (Emphasis added.) The finding was not appealed. It is a final and conclusive judgment.
The respondent variously launched collateral attacks on the validity or finality of this judgment, and alternatively suggested that if valid, that the finding was somehow subject to the portions of the prior collection of judgments that were favorable to him. These claims are specious.
Respondent's counsel, during his final arguments, conceded the validity of the August 26, 2003 judgment: "[W]e can't contradict that order; it's a court order from a sister state; therefore . . . it's entitled to full faith and credit." Transcript, 10/5/2010, p. 180. That concession did not stop counsel from then urging the court to ignore the arrearage finding in the judgment, allow set-offs that would wipe out the child support, and ignore the accrued spousal support. He renewed these arguments in his post-hearing memorandum.
The respondent places some reliance on the fact that the 2003 document is captioned "Order after Hearing." The implication is that since it is not entitled "Final Judgment" it is somehow not final, or not a judgment, or both. This claim is made straight-faced even though none of the respondent's previous triumphs in California were based on documents entitled "Final Judgment." They were variously styled "Tentative Judgment," "Partial Judgment," "Further Judgment," "Orders," etc. He makes this claim in full knowledge that in his successful appeal of an earlier order, the California Court of Appeals stated: "The parties' focus on the order's label . . . is misplaced. In deciding whether an order is final for purposes of appeal, `[a] court will look to the substance of an order or judgment rather than its chronology or form.' ( In re Marriage of Eben-King King (2000) 80 Cal.App. 4th 92, 115, 95 Cal.Rptr. 2d 113.)" Frazee v. Frazee, 2002 WL 99445 (Cal.App. 4 Dist. 2002).
It appears that the 2003 order was the end result of a July 19, 2002 show cause filed by the respondent regarding modification of child support, spousal support and incidental matters. It is certainly commonplace for the decision on such a post-judgment motion to be designated "Order" while yet having the characteristics of a final judgment.
Certainly, the earlier appeal demonstrates that the respondent was able to find his way to the door of the Court of Appeals. But the 2003 order was never appealed. There is no indication that the court contemplated any further proceedings on the issues determined. The next order of the California courts was the 2005 order modifying spousal support, and there has been no subsequent order. It is clear beyond serious question that the 2003 order is a final judgment and is the controlling order under UIFSA.
This is in contrast to many of the prior judgments in which the court explicitly or implicitly retained jurisdiction to further determinations, including the "Tentative Judgment" that the respondent managed to convince the Court of Appeals was a final judgment.
The respondent has asserted at various times that the 2003 order is not the controlling order, or if it is it is co-controlling with several other previous orders. This claim is without merit. First, the very principal of controlling order under UIFSA dictates that there is a single order. Second, the 2003 order clearly considered all of the foregoing proceedings. In fact, the order simply ratifies the support orders entered previously, and then finds the arrearage specifically inclusive of all credits due Respondent. The respondent's theory would have it that any arrearage finding is always subject to renegotiation and recalculation, particularly if related to some past doings of the court. This flies in the face of judicial principals of finality of judgment, res judicata and collateral estoppel.
General Statutes § 46b-212a(24) defines "support order" as "a judgment, decree, order or directive whether temporary, final or subject to modification, issued by a tribunal for the benefit of a child, a spouse or a former spouse, which provides for monetary support, health care, arrearages or reimbursement, and may include related costs and fees, interest, income withholding, attorneys fees and other relief." (Emphasis added.) It can readily be observed that the registered order in the present case fit within the italicized elements of the definition. The respondent certainly knew, or in the exercise of due diligence, should have known this. The court can only conclude that this entire line of collateral attack was disingenuous and dilatory.
The respondent's claims regarding offset are equally without merit. The respondent apparently believes that not only does California law allow offset against child and spousal support arrearages, but that it mandates offsets, and does so in whatever amounts and at whatever times are demanded by the respondent. Thus the respondent claims in the alternative that either the net effect of the various judgments and orders from 1995 through 2002, and most especially the appeal opinion, entirely offset all of the remaining child support, spousal support, child care, and interest, or alternatively that he may now assert such offsets, with the inevitable conclusion that he has fully satisfied, if not overpaid, the arrearages. The respondent indulges in a breathtaking expansion and distortion of what California law actually provides and more importantly, the outcome of his appeal.
The respondent's offset argument is most completely set forth in his brief dated February 25, 2010 entitled "Response to Orange County Pay History." He returned to this theme numerous times during the course of the hearings, and in footnote 13 of his post-hearing memorandum. For starters, he cites the unsurprising principal that in civil cases, conflicting monetary claims may be offset, citing Granberry v. Islay Investments, 9 Cal.4th 738, 744, 889 P.2d 970, 38 Cal.Rptr. 650 (1995); Harrison v. Adams, 20 Cal.2d 646, 128 P.2d 9 (1942), and California Cotton Credit Corp. v. Superior Court, 127 Cal.App. 472, 474, 15 P.2d 1108 (3rd Dist. 1932).
He then cites a single family case, Keith G. v. Suzanne H., 62 Cal.App.4th 853, 72 Cal.Rptr. 525 (2nd Dist. 1998), as authority that the court is "required" to credit any offset to which the respondent is entitled. It is true that under California family law, offset is sometimes recognized. See also In re Marriage of Trainotti, 212 Cal.App.3rd 1072, 1074, 261 Cal.Rptr. 36 (1989); In re Marriage of Assemi, 7 Cal.4th 896, 905 (1994).
However, California law is not consistent or uniform on this issue. Other cases have precluded offsetting child support against debts owed to the obligor. Williams v. Williams, 8 Cal.App.3d 636, 638-40, 87 Cal.Rptr. 754 (1970) ("[T]he very nature of child support gravitates against the allowance of the setoff sought"); In re Marriage of Stutz, 126 Cal.App.3d 1038, 1041-42 (1981). "[S]ince a child support obligation runs to the child and not the parent, a debt owed by the custodial parent to the supporting parent generally cannot be offset against child support arrearages." Hogoboom King, Cal. Practice Guide: Family Law, supra, 18:40, p. 18-10, rev. #1, 2000; see id., ¶ 6:628, p. 6-243, rev. #1, 2000. See also, In re Harwood, CT Page 22520 161 Cal.App.4th 745, 752, 74 Cal.Rptr.3rd 721 (2008) (disallowed offset for voluntary overpayment of child support). In Keck v. Keck, 219 Cal. 316, 319-21, 26 P.2d 300 (1933), a seminal case once cited nationally as authority to preclude retroactive modification of support arrearages, the court held that a setoff would amount to a "retroactive alteration of alimony payments" and accordingly held that there can be no such offset. See also Zaragoza v. Zaragoza, 48 Cal.App.2d 27, 28-29, 119 P.2d 162 (1941).
The appeal in his own case, Frazee v. Frazee, 2002 WL 99445 (Cal.App.4th Dist. 2002), does not provide robust support for his offset argument. In that appeal, the court reversed a finding and order of payment for an arrearage accruing from pendente lite support orders, holding that it failed to take into account offsets allowed in an earlier tentative judgment. (See Tab A-3, which contains the text of the appeal.) However, it appears that the court never reached the substantive issue of whether the offsets were appropriate. Instead, the court ruled that the tentative judgment, which included the offsets, had become a final judgment. "Because the issue of temporary support was fully litigated, resulting in a now final judgment, and the parties are identical, the offset is entitled to res judicata effect. (Citations omitted.)" However, the court also stated: "Nor is it of any moment that the offset may have been erroneous. `If [the] court has jurisdiction, it may decide the wrong as well as the right . . .'" — hardly a rousing endorsement.
According to the finding of facts in the appeal, the respondent's arrearage at the time for child support, spousal support and interest totaled over $74,000. The exact offsets claimed by the respondent and actually awarded by the courts are not entirely clear without an intensive review of the several orders and judgments. It appears that the best synopsis appears in the "further judgment" dated January 19, 1999, (Tab A-5) which includes an unexplained "additional credit" of $8,520; a sum of $19,925 owed by the petitioner "to equalize the division of community assets" and an offset to the offset of $15,000 owed to the petitioner "as and for a contributive share of [her] attorney fees," costs to the respondent of $170.75 and $2,250 owed by the petitioner to the respondent as her share "of the fees advanced by the Respondent for the Judge Pro tempore (!). The tentative judgment of August 5, 1996 (Tab A-1) contained the finding of the offset of "community bills" paid by the respondent against retroactive support and also awarded the respondent the family residence "as an offset to cash disbursements to Petitioner from the bank accounts of the parties." A later decision explicitly denied the respondent's claim for an additional offset for an alleged withdrawal by the petitioner of some $110,000 from community bank accounts.
Contrary to the impression the respondent sets forth, the net effect of the appeal decision and the "Tentative Decision" that the appeal affirmed, was that Mr. Frazee was the beneficiary of huge offsets. The "Tentative Decision," found in Tab A-1 and Tab 25, held that payment of the respondent of "numerous community property bills . . . were equal to the spousal support which would have been due to the Petitioner, and therefore no retroactivity of the support awards ordered." According to the appeal opinion, the accrued arrearage for child support, spousal support and interest was over $74,000 which was essentially wiped out by the decision. Additionally, the Respondent was awarded the family residence in full "as an offset to cash disbursements to Petitioner from the bank accounts of the parties." The record and documents in evidence in this court do not reveal the value of the family residence or the amount of the "cash disbursements" the court found it necessary to offset. Reference to Petitioner's Exhibit 4 includes a transcript excerpt from a March 2003 hearing in which the Judge confirmed and counsel of both parties agreed that pursuant to the remand, the court "found no arrearage prior to August 1996 [at which time] we start with a clean slate."
Once again, regardless of any academic interest in the labyrinthine minutiae of California family law, in the present case, it matters not. Once again, hearken to the finding in the 2003 order that its arrearage finding was " inclusive of all credits due Respondent." By its terms, the arrearage finding is presumed to include the offset credits mandated by the Court of Appeals, as well as any offsets or any other credits claimable by the respondent up to the date of that judgment. No appeal was taken. Under California law, "[o]nce the time for appeal has passed, a judgment or order is no longer vulnerable to collateral attack." Armstrong v. Armstrong, 15 Cal. 3d 942, 950-51; 125 Cal.Rptr. 805, 544 P.2d 941 (1976); People v. Cotton Belt Ins. Co. 143 Cal.App.3rd 805, 808, 192 Cal.Rptr. 210 (1983).
Notwithstanding the respondent's repeated assertions that he is entitled to offsets that would result in an overpayment of child support, there is no credible evidence that would support such a finding by this court. If this court had any authority or inclination to ignore the California judgment and endeavor to make its own finding, it would require a virtual retrial of some ten years of California litigation. In addition to requiring evidential hearings to determine exactly what monetary amounts the respondent claims, the court would also have to sift through a determination as to whether and to what extent any of these claims were already subsumed into the significant offsets found in 1996 and sanctioned by the Court of Appeals. See footnote 15. The court would also need to determine whether any of the offsets claimed by the respondent were themselves subject to offset claims by the petitioner. For example, the "Further Judgment" (April 10, 1997), Tab A-4 and Tab 18 appears to determine that respondent's claim for reimbursement of $110,000 removed from a bank account, was already subsumed in the award of the family residence to the respondent. The "Further Judgment" of January 19, 1999, Tab A-5, includes numerous monetary findings including an offset of $ 19,925,50 owed the respondent to equalize the division of community assets which itself was offset by $15,000.00 awarded to the petitioner as attorney fees. There is neither authority nor reason to re-litigate the California litigation.
From State's Exhibit 101, it is apparent that OCDCSS utilized the precise findings in the 2003 order as the starting point for the account. Charges of the ongoing child support, child care, and spousal support continued to be added to the account through June 2004 after which all three charges ceased, apparently because Dustin had emancipated. The modification of spousal support to zero (Tab 1) was effective October 1, 2004. The account does not charge for the three remaining months of spousal support and the court declines to sua sponte add this unclaimed additional amount.
The three additional months of spousal support would add $1,350 plus accrued interest to the claim.
One additional claim of the respondent may be disposed of at this point. The respondent claims that the certified arrearage erroneously includes improper spousal support. Reference has already been made to the confusion engendered by the form of the accounting. However, the sheet entitled "Simple Report — All Debt types" properly and correctly starts with the findings in the 2003 judgment and adds the combined child support, child care, and spousal support of $1,550 per month until the charges stopped in June 2004.
Nevertheless the respondent claims that all spousal support and interest accrued on the spousal support must be deleted from the claim. He bases this on a letter OCDCSS sent to the petitioner dated April 13, 2010, which states, inter alia, that a "new directive" prevents OCDCSS from enforcing spousal support after the child has emancipated.
This is a distortion of the letter, for several reasons. First, and foremost, the directive only precludes OCDCSS from enforcing spousal support. The third paragraph of the same letter states: "This change does not eliminate the obligation of Spousal Support." Furthermore, there is nothing in the policy change that precludes Connecticut from enforcing the accrued spousal support. Moreover, the petitioner is entitled to make a direct claim under UIFSA. Finally, a fair reading of the letter (including the comment that the account has been adjusted accordingly) suggests that the implication that all accrued spousal support will not be enforced is inaccurate. A more accurate statement is that OCDCSS will no longer enforce spousal support which accrued after the child emancipated. This is the explanation as to why all support charges ceased with June 2004.
In her final argument, Assistant Attorney General Gaines correctly noted that the registration transmittal from OCDCSS included addenda which included the claimed spousal support except for the spousal support that accrued after June 2004. She also verified that the request by the petitioner was to include spousal support. Transcript, 10/5/2010, pp. 183-85. The respondent, in his post-hearing memorandum dated October 12, 2010, reasserts the claim that the registration does not include child support because of the "California directive" and raises for the first time the claim that the registration precludes the spousal support. The logic is that because the transmittal, at section II "Case Summary" states the amount and frequency of the order as "$850.00" per month, and since that amount was the precise amount of the child support portion of the total order, it follows that the registration only applies to child support. This court agrees with the respondent that the particular blank for amount and frequency of the order is erroneous, but not in the way argued by the respondent. The transmittal was dated January 30, 2008. As stated in the text, OCDCSS stopped charging the account any support after June 2004. The correct response to the blank at the time the transmittal was prepared was "$0" because all of the periodic support charges had terminated. In any event, this is a trivial error which does not prejudice the respondent. As stated in the text, the registration transmittal clearly delineates that it is the arrearages found in the August 26, 2003 order, plus the additional arrearage which accrued through June 2004 that is being claimed. This court does agree with the respondent that the spousal support that accrued after the child support order terminated is excluded from the registration. This is not because of the "California directive," but simply because those charges were not included in the addenda or the accounting, and therefore are not properly alleged. As stated in footnote 18, this additional amount would have added $1,350 plus interest to the claim, but because it was not properly alleged, it is excluded. However, since the claim was excluded from the totals claimed, the exclusion has already been accounted for, and does not change the monetary outcome.
As stated previously, California law mandates that interest be charged at 10% per annum. UIFSA includes interest within the definition of "support order" and accordingly this court is mandated to collect it. While it is uncommon for interest to be added in Connecticut support cases, our law actually provides court discretion to charge interest and there are cases in which interest is ordered. General Statutes § 37-3a; Ford v. Ford, 41 Conn.Sup. 538, 539, 589 A.2d 893 [ 1 Conn. L. Rptr. 624] (1990).
See footnote 9, supra, and accompanying text.
General Statutes § 37-3a provides in pertinent part: "(a) Except as provided in Sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable."
The trial court entered an order finding the defendant in contempt and awarding the plaintiff attorneys fees and costs. The defendant was ordered to pay the arrearage due, together with statutory interest. The case was continued in part to compute the statutory interest due. On the continuance date, the parties were in dispute as to the applicable rate of interest allowed on the arrearage. The dispute centered on whether the court applied General Statutes § 37-3a, providing for interest on the arrearage at the rate of 10 percent per year or as the defendant contended that pursuant to General Statutes § 37-1, the plaintiff was only entitled to interest at the rate of 8 percent per year. The court cited authority that either section would be applicable, and exercising the court's discretion, opted to apply the 10 percent rate.
While interest is not customarily awarded in family cases in Connecticut, there is ample authority to do so. In family relations matters, "where the detention of sums due and payable is adjudged to be wrongful, the courts have concluded that interest is a proper element of recovery. See Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978); Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 274-75, 287 A.2d 374 (1971); LaBow v. LaBow, 13 Conn.App. 330, 352-53, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988)." Ford v. Ford, supra, 41 Conn.Sup. 539.
"It is not in dispute that such an award of interest may be made in marital dissolution actions." Sosin v. Sosin, 109 Conn.App. 691, 703, 952 A.2d 1258, cert. granted on other grounds, 289 Conn. 934, 958 A.2d 1245 (2008). "When a former spouse is not justified in failing to pay sums due . . . the award of interest is proper." Dowd v. Dowd, 96 Conn.App. 75, 86, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). In Beaver v. Beaver, 21 S.M.D. __, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. FA01-0076145 (April 3, 2007, Wihbey, F.S.M), the court stated that "because the Defendant has wrongfully, and willfully, detained monies due and owing to the Plaintiff, simple interest at the rate of 5% per year will be charged on any remaining and outstanding balance due and owing to the Plaintiff until the arrearage has been paid in full." See also Picton v. Picton, 111 Conn.App. 143, 155-56, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009); Crowley v. Crowley, 46 Conn.App. 87, 96-97, 699 A.2d 1029 (1997); Mihalyak v. Mihalyak, 30 Conn.App. 516, 620 A.2d 1327 (1993); LaBow v. LaBow, 13 Conn.App. 330, 353, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); Giordano v. Giordano, Superior Court, judicial district of Hartford, Docket No. HHD FA 04 0735793S (November 9, 2009, Frazzini, J.); Lebrun v. Lebrun, 2008 Ct.Sup. 17797, Superior Court, judicial district of New Haven at New Haven, Docket No. FA 94 0366032 S (November 7, 2008, Frazzini, J.).
The accrued interest, and the continuing charge of interest, are mandated under California law, sanctioned under UIFSA, and are not inconsistent with the public policy of this state. Accordingly, support enforcement shall continue to charge interest at the rate of 10% per annum on the principal arrearage balance but not on the accrued interest. While the California case McClellan v. McClellan, 130 Cal.App.4th 247, 30 Cal.Rptr.3d 5 (2005), suggests that interest charges may also apply to the accrued interest, the Simple Report clearly shows that OCDCSS is only charging interest on the principal, and this court will follow suit. However, orders in Connecticut are customarily charged weekly. Accordingly, the court instructs support enforcement to calculate and charge the interest on a weekly basis.
In summary, this court finds that the August 26, 2003 order of the Superior Court of California, including the arrearage finding and prospective orders therein, together with the subsequent 2005 modification are final judgments and are entitled to full faith and credit by this court. Furthermore, this court finds the account set forth in State's Exhibit 101 entitled "Simple Report" and subtitled "All Debt Types" is substantially correct.
The registration transmittal alleges a total arrearage of $144,202.23 as of December 31, 2007. State's Exhibit 101 accounts for charges through July 31, 2010 for a total of $167,619.25, the difference accounted for by accruing interest. The same mathematical result occurs from registering the December 2007 and adding interest to July 31, 2010 as by registering the July 2010 amount which includes the same interest.
"The present arrearage can be computed by simply adding all charges under the operative support order, and subtracting all proper payments and credits. Gatter v. Gatter, 15 S.M.D. [60, 63], 2001 Ct.Sup. 1830-av (2001); Giordano v. Giordano, 14 S.M.D. [37, 39] (2000); Filiatrault v. Becotte, 12 S.M.D. 154, 156 (1998); Lynk v. Lynk, 11 S.M.D. 233, 242 (1997); Thibault v. Thibault, 10 S.M.D. 313, 317 (1996); Alicea v. Villafane, 10 S.M.D. 40, 42 (1996); Landon v. Landon, 8 S.M.D. 200, 202 (1994)." (Internal quotation marks omitted.) Fernandez v. Fernandez, 17 S.M.D. 1, 5, 2003 Ct.Sup. 189 (2003).
The arrearage is calculated as follows:
62,439.72 0.00Total arrearage as of 5/31/2003 per August 26, 2003 judgment $ 85,029.53 Additional support through June 2004 20,150.00 Accrued interest 6/1/2003 to 7/31/2010 Total Charges: $167,619.25 Less: Payments (after 5/31/2003) Arrearage Balance 7/31/2010 $167,619.25
The objection to the registration is overruled. The registration is confirmed. The arrearage, updated to July 31, 2010, is $167,619.25 to the petitioner. Support enforcement services shall adjust the arrearage for interest commencing August 1, 2010 and credit any payments made by the respondent on or after that date.
Just to clarify for the respondent, "payments" means only monetary payments made to Connecticut Support Enforcement Services in accordance with written instructions handed to his attorney in court, and specifically do not include any other claimed credits, offsets, cross-claims, in-kind value, or any other attempt to avoid monetary payment.
This court has authority to order payment on the arrearage. General Statutes §§ 46b-213i(b), 46b-213j(c), 46b-215(a)(9). This court issued a temporary payment order on September 2, 2010, requiring payment of $167.30 per week. That order was based on 50% of the previous support order in accordance with the Regulations of Connecticut State Agencies § 46b-215a-4a-(d)(2).
The final day of hearing provided additional information to form a basis for a final order for payment of the arrearage. In terms of the child support guidelines, there is conflicting evidence that weighs upon determining a presumptive order. The respondent now claims to be unemployed and earning zero. Of course this would produce a zero payable order. However, the court does not find this claimed lack of income to be credible.
The guidelines also justify continuing the monetary amount of the temporary order, particularly since the underlying California support order was based on actual earnings or earning capacity of both parties and was never modified until the child achieved majority. The earning capacity of the respondent at the time was determined to be $100,000 per year. The respondent describes himself as "a senior executive with an expertise in international manufacturing and international business . . . I've either been a chief operating officer or president or CEO, chief executive officer, for the past 12-plus years . . ." He claims to be diligently searching for existing positions while also trying to create a venture. He claims these efforts have been unsuccessful. He claims the last year he was employed, 2008, he earned $80,000 to $85,000. He paid nothing on his child support arrearage during that year. He also inherited about $80,000 around the same time from his father's decedent estate. Transcript, 10/5/2010, pp. 162-75. According to his financial affidavit and testimony, he owns four automobiles including a 1930 Model A Ford. He claims that he has loans outstanding to his daughter secured by these vehicles which exceed their value. The claimed encumbrances on these assets are supported only by the testimony of the respondent, which the court does not find credible.
He claims there is approximately $15,000 left of the inheritance. It is not disclosed on his financial affidavit. In his testimony, he referred to this money as "my wife's balance."
He disclaims any direct or indirect ownership interest in the home in which he resides. He claims he has nearly exhausted his assets, including the $160,000 or more that passed into his hands in 2008. However, he lists weekly expenses of nearly $1,400 on his financial affidavit, a spending pattern hardly consistent with his claim of being tapped out. "[I]t is well established that [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 53 (2010).
The petitioner apparently seeks payment of the total arrearage as a lump sum. The long period of total non-payment over the past seven years, the respondent's significant earning capacity, the fact that as recently as 2008 he received a windfall that would have at a minimum allowed payment of the entire principal and the dilatory tactics utilized by the respondent all gravitate toward serious consideration of the petitioner's request. These factors are tempered somewhat by the fact that some of the delay is attributable to failures of the petitioner and OCDCSS to promptly comply with earlier court orders which, had they been followed, would have allowed more prompt resolution of the matter.
This court does find cause to deviate from the guidelines in fashioning a payment plan. The court finds that the respondent has substantial assets, including motor vehicles and the remainder of his earnings and inheritance, and that the respondent's earning capacity remains substantial, and other equitable factors, all justifying a significant upward deviation.
These include the respondent's failure to make any payments when he admittedly possessed significant income, the long period since a payment has been made, and that the accruing interest is not even covered by the present temporary order, requiring acceleration of payments to avoid a perpetual arrearage.
The court orders the respondent to pay $325 per week on the accrued arrearage (including accrued interest). The respondent is further ordered to make a lump sum payment of $85,000.00 on or before December 15, 2010 and to pay the entire remaining arrearage, including interest, on or before August 15, 2011. In the event that the respondent fails to pay the periodic order in full and on time, or violates any other payment order, the court reserves the option, in its discretion, to accelerate the payment of any or all of the arrearage balance.