Pamela Nault v. Jack C. Mancuso
-- May 07, 2013
MEMORANDUM OF DECISION
The plaintiff mother filed a custody application on May 22, 2008 seeking joint legal custody of the two children of the parties: Massimo born April 1999 and Vanessa born September 2001. The parties were never married.
The parties entered into a stipulation, pendente lite, on June 18, 2008 providing for joint legal custody of the children and setting forth a four-week rotating parenting plan. An additional provision of the stipulation provided that the defendant would have four additional overnights per month “as agreed.”
The parties also agreed that a guardian ad litem (GAL) would be appointed and to seek an order for mediation through Family Relations.
The case then continued and continued. There were motions for contempt filed with respect to the defendant not receiving the four additional overnights and defenses raised by the plaintiff that such overnights were not set, but were to be as agreed and so, if no agreement, then there would not necessarily be four additional nights.
In the interim, additional orders were entered including, without limitation, an order dated August 19, 2011 approving the agreement of the parties pursuant to which defendant would pay all of the costs for the children to attend a parochial school (for 2 years for Massimo and 4 years for Vanessa), including the costs of uniforms. (130.) The order provided further that the children would attend Suffield Academy, if accepted, for high school and the defendant would assume all of the costs related to their schooling at such school, but if the children were not accepted or the defendant becomes disabled or otherwise unable to pay for Suffield Academy the children would automatically be enrolled in Suffield High School. Child support was agreed to continue at $100 a week, payable by the defendant. The order was non-modifiable.
On or about the day the parties were finally set to proceed to trial, through the auspices of the GAL the parties reached an agreement with respect to the custody of the children, which would be joint legal custody, and setting a two-week rotating parenting schedule. The Custody/Parenting Agreement was dated, filed and ordered by the court, Prestley, J., on April 4, 2013 (agreement). (145.) The two-week parenting schedule does not provide for any floating days. Under the agreement, the plaintiff has eight overnights out of the fourteen days of the schedule.
The court held a hearing on May 1, 2013 as the parties were unable to reach an agreement on the financial aspects of the custody proceeding, to wit, to determine child support, the allocation of unreimbursed medical/dental expenses and post-majority educational support. The court also heard the motion filed by the plaintiff seeking an award of attorneys fees. (136.) An objection to the motion was filed by the defendant (138) and the plaintiff filed a memorandum in support of her motion (139).
As of the date of the hearing the plaintiff was employed as a registered nurse. Her gross weekly wages for her full-time employment (for a thirty-six-hour week) was $1,268 and her net was $916. Her wages and assets have remained relatively stable throughout the course of the proceedings.
The defendant was unemployed as of the date of the hearing. On November 20, 2008, his weekly gross and net income from his employment with Resources Global Professionals was $2,990 and $1,146, respectively. He also showed rental income of $375 a week. On May 25, 2010, his weekly income from the same employer was $1,856 gross and $956 net. The rental income remained the same. He testified that his W–2 earnings (from two different employers) for 2012 were approximately $68,000 gross, although $2,000 of that amount was not good funds and so the actual would have been approximately $66,000 annually (which for 52 weeks equates to $1,267 gross). On March 26, 2013 and May 1, 2013, his financial affidavit showed no income from employment and his rental income had declined to $335.
The defendant testified at the hearing that he did not apply for unemployment compensation as he did not believe he was eligible.
The defendant is fifty-nine years old. He testified that in the last few months he applied for many different positions; nothing has panned out. He has a master's degree from the University of Connecticut and has worked as an accountant.
The defendant is more than willing to fund the educational costs for all of his children, including the children he had with the plaintiff, so that they may attend the “best schools possible.” He does not appear to be as willing to pay child support. He said he was paying the $100 a week order as a result of extortion.
Despite his lack of employment, he recently invaded his 401(k) to pay the graduate school costs of his daughter from another relationship. His daughter is twenty-seven years old and received a master's degree from American University in Paris. He claimed to have expended approximately $120,000 from his 401(k) for such purpose. He also used about $10,000 from the 401(k) for his own living expenses.
In fact, throughout the pendency of these proceedings the value of his assets has steadily declined and then took the precipitous drop within the last year when he invaded the 401(k) for the graduate degree as set forth above (the court has, for convenience, rounded off the numbers):
(i) As of November 20, 2008, the property at 5 Franklin Street (Franklin) was valued at $150,000 and subject to a mortgage of $88,000 resulting in equity of $62,000; the property at 17–19 Keller Avenue (Keller) was valued at $155,000 and subject to a mortgage of $55,000 resulting in equity of $95,000; stocks were valued at $13,000; and there were 3 retirement assets having an aggregate value of $195,000.
(ii) As of May 25, 2010, Franklin had the same value, but was subject to a mortgage of $112,600 resulting in equity of $37,400; Keller had the same value, but was subject to a mortgage of $60,300 resulting in a value of $89,700; the stocks were gone; and the 3 retirement assets had a total value of $190,350.
(iii) as of March 26, 2013 and May 1, 2013, Franklin had a value of $115,000 and was subject to a mortgage of $93,000 resulting in equity of $22,000; Keller had dropped in value to $135,000 and was subject to a mortgage of $94,000 resulting in equity of $41,000; and there was one 401(k) having a value of $46,600.
The Keller property is for sale. The defendant included on his financial affidavit recapture tax and capital gains taxes that will be due on sale—but it has not been sold yet.
The court may, pursuant to General Statutes § 46b–84(d), consider the earning capacity of the parties in determining the appropriate amount of child support.
“Earning capacity ․ is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), cert. denied 285 Conn. 911 (2008); Eliah v. Eliah, 99 Conn.App. 829, 833 (2007). See also Rozsa v. Rozsa, 117 Conn.App. 1 (2009) (court did not abuse its discretion by basing net income finding on combination of actual income and earning capacity; there is no requirement that the court must find the party has willfully diminished income before imputing income). “It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” Weinstein v. Weinstein, 280 Conn. 764, 772 (2007). Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.” Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004). Milazzo–Panico v. Panico, 103 Conn.App. 464, 468 (2007).
The court finds it appropriate to impute an earning capacity to the defendant based on the facts of this case. The court finds the defendant to have an earning capacity of $60,000 a year gross which equates to a weekly wage of $1,154, gross and $848, net.
Based on the plaintiff's actual earnings and the defendant's earning capacity, the presumptive child support payable by the defendant, based on the Worksheet for the Connecticut Child Support and Arrearage Guidelines (Guidelines), with the plaintiff having primary residency of both children, is $187 a week.
The defendant has asked the court to deviate from the Guidelines and order no child support, on the basis of shared physical custody, in that the parties have agreed to share parental responsibilities in accordance with their agreed upon parenting plan. For her part, the plaintiff disagrees and she has asked that if the court does not feel the Guideline amount is appropriate, that the existing pendente lite orders be continued. For the following reasons, the court finds that it would be appropriate to deviate from the Guidelines.
First and foremost, in entering an order for child support, a court must consider both General Statutes § 46b–215b and the Regulations promulgated thereunder together with the resultant Guidelines, as well as the factors set forth in General Statutes § 46b–84, Maturo v. Maturo, 296 Conn. 80, 90–92 (2010), and that child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001). As part of its analysis, the court must make a finding of “presumptive support.” Next, it must find that it is “inequitable or inappropriate” to order the payment of the presumptive amount. Both of these findings are a condition precedent to applying any deviation criteria. Kiniry v. Kiniry, 299 Conn. 308, 319–20 (2010).
“Shared physical custody means a situation in which each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule. An equal sharing of physical care and control of the child is not required for a finding of shared physical custody.” § 46b–215a–1(22) of the Child Support and Arrearage Guidelines Regulations. That said, the regulations are singularly unhelpful in arriving at “presumptive support” in the case of shared physical custody. Specifically, the regulations presume that there is one custodial parent and one noncustodial parent; the court above found such a presumptive amount.
Once it is determined that shared custody exists, and that the presumptive support obligation is found, whether or not to apply one of the deviation criteria such as shared physical custody, requires additional inquiry. Deviation on the basis of shared physical custody is “warranted only when: (i) such arrangement substantially reduces the custodial parent's, or substantially increases the noncustodial parent's, expenses for the child; and (ii) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation.” § 46b–215a–3(b)(6)(A) of the Child Support and Arrearage Guidelines Regulations.
In applying the foregoing to the facts and evidence in this case, the court concludes that there is a shared physical custody arrangement and that a decrease in the child support obligation of the defendant is warranted. The court has also considered and relied upon the testimony of the defendant that he will pay for the best schools available for the children.
The court finds that under all the circumstances, it is equitable and appropriate to deviate from the Guidelines on the basis of shared physical custody, and that the sum of $80 a week is an appropriate level of support from the defendant. The court orders the defendant to pay $80 a week in child support commencing as of May 1, 2013. This finding and order are expressly conditioned upon the defendant paying 100% of the cost of any parochial or independent elementary or secondary school that the children attend. In the event the children attend any such school and the cost is not borne entirely by the defendant, such event shall constitute a substantial change in circumstances.
The defendant shall pay 36% of the unreimbursed medical and dental expenses, including health insurance premiums and of work-related child care, including summer camps.
The parties shall equally share the cost of the children's extra curricular and enrichment activities.
The Court finds that had the parties remained an intact family, they would have financially supported their children in their child's post-secondary educational efforts and that the children are likely to pursue post-secondary educational experiences.
The Court shall retain jurisdiction over the post-secondary education expenses for the minor children pursuant to Connecticut General Statutes § 46b–56c.
So long as there are two eligible children, each party shall claim one child (the defendant shall claim Vanessa) as a dependent for income tax filings. At such time as only one child is an eligible child, the parties shall alternate claiming the minor children as dependents for income tax filings with the defendant taking the exemptions in even years and the plaintiff taking the same in odd years.
At the hearing, there was no evidence presented of the defendant acting in bad faith or vexatiously. While there may have been times when it appeared that an agreement on the matter had been reached, such agreements were never ordered by the court nor was the court asked to enforce any such agreements.1 The fact that the defendant may have reneged on terms that had been, perhaps, tentatively agreed upon is no doubt frustrating to the plaintiff, however, given the relative income of the parties, the court does not find it appropriate to order that the defendant bear any portion of the plaintiff's legal fees. Each party shall pay their own legal fees and costs associated with this action.
By the court,
1. FN1. No party requested a so-called Audobon hearing to enforce a settlement agreement. Audobon Parking Associates Ltd. Partnership v. Barclay and Stubbs, Inc., 225 Conn. 804 (1983).
Olear, Leslie I., J.