Regina Carreiro v. Peter D. Utz (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S APPEAL FROM DECEMBER 23, 2009 DECISION OF FAMILY SUPPORT MAGISTRATE

The parties appeared before the Family Support Magistrate (Adams, J.), on December 18, 2009.   Both parties filed financial affidavits but only the defendant submitted a child support guideline worksheet.   Notwithstanding that the guideline worksheet called for a child support order of $43.84, the court ordered child support of $75 per week.   There was no finding on the record that the defendant had an increased earning capacity, no finding as to what the presumptive child support should have been, and no finding that the guidelines should not apply.

The court in Unkelbach v. McNary, 244 Conn. 350, 367, 710 A.2d 717 (1998), explained:  “Section 46b-215a-5(a) of the Regulations of Connecticut State Agencies employs language identical to the language of § 46b-215a-3(a) in creating a rebuttable presumption that the amount of child support calculated through application of the guidelines is the amount that should be ordered.   Both sections require that, in order to rebut the regulatory presumptions, the trial court make a ‘specific finding on the record that the application of [the] guidelines would be inequitable or inappropriate in a particular case’ and ‘state the amount of support that would have been required under the guidelines and include a justification for the variance.’  “ Id., 368, citing Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994).

This language requires the Magistrate to first determine on the record the amount of support indicated by the guidelines schedule before determining whether to deviate from that amount.

“Requiring the trial court to determine the amount of the arrearage payment to be ordered pursuant to the guidelines before deciding whether and to what extent to deviate from the guidelines is appropriate because it will facilitate appellate review in those cases in which the trial court finds that a deviation is justified and will enable an appellate court to make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.”  Unkelbach v. McNary, 244 Conn. 350, 370 (1998).   See, Wallbeoff v. Wallbeoff, 113 Conn.App. 107 (2009).

In the instant case, the Magistrate did not calculate the presumptively correct support order pursuant to the guidelines, did not make a specific finding on the record that application of the general rule would be inequitable or inappropriate under these circumstances, and did not include a justification for the variance.   Therefore, the Magistrate's order constituted an abuse of discretion.

Wherefore, the Magistrate's order is vacated.   The defendant is ordered to pay child support of $43.84 per week and pay 24% of any unreimbursed medical or daycare expenses retroactive to December 18, 2009.

Shluger, J.

Shluger, Kenneth L., J.