Dana R. Lemay v. Robert J. Lemay (2010)

MEMORANDUM OF DECISION

On May 18, 2010 the court heard testimony and argument on two post-judgment motions:  the defendant's motion to modify child support (# 131), and the plaintiff's motion for contempt (# 132).   For the reasons given, the court will grant both motions.

The marriage of the parties was dissolved on an uncontested basis on November 2, 2006 following a marriage of approximately eight years.   The parties, who were both represented, entered into a separation agreement which was incorporated in the judgment by the court (Sheedy, J.).   The plaintiff was granted sole legal custody of the minor child, Jack, now age 7. Paragraph 7 of the separation agreement, entitled “Child Support” provides, in part:  “The Husband shall pay child support to the Wife in accordance with the Child Support Guidelines.   Currently, based on the present income of the parties, the child support amount is $184.00 per week.   However, the parties agree that the minor child is presently enrolled in day care which results in a total weekly payment of $300.00.   The Husband agrees that he will pay the sum of $300.00 per week as child support whether or not the child attends day care, and the Wife shall waive any child care contribution.   It is agreed by the parties that the child support payment of $300.00 per week is, in fact, a deviation from the Child Support Guidelines.”   The Child Support Guidelines Worksheet submitted to the court at the time of the dissolution shows the plaintiff having a gross weekly income of $965, and the defendant having a gross weekly income of $1,504 and a net weekly income of $1,080.   Also, the total cost of child care was shown to be $204 per week with the defendant's share of the child care is shown to be 52%, or $106 per week.   The plaintiff's financial affidavit on the date of dissolution shows a weekly gross of $965.08 and a weekly net of $640.38.   The defendant's financial affidavit dated on November 2, 2006 shows a weekly gross of $1,188.10 and a weekly net of $772.10.

At the dissolution hearing on November 2, 2006 both parties were questioned about the separation agreement.   The plaintiff was asked by her attorney about the reason for the deviation from the child support guidelines:  “And as I understand the agreement that you and your husband reached, the deviation is because there were a number of bills that had been paid and that have to be paid throughout your marriage and after you separated, is that right?”   Her answer was:  “Yes it is.”   She was then asked:  “And that is one of the controversies in this case, is that true?”   She said:  “Yes.” Then she was asked:  “And you've paid a number of those bills and you were looking for some compensation as part of the final division of assets and or final settlement in this matter, is that correct?”   Her answer was:  “That's correct, yes.”   Finally, she was asked:  “And what the two of you have worked as part of the final settlement is you're not going to seek any payment for those past bills except a $5,000 payment that is later on addressed in your agreement, but there's a deviation in the child support to sort of set off the fact that you paid a lot of money on some of those past bills?”   Her answer was:  “Yes.”

Then the defendant was questioned by his attorney, including:  “And you also have agreed that as part of the consideration for the separation agreement, you are paying child support to your wife in a greater amount than the child support guidelines?”   He answered:  “Yes.” Then he was asked;  “Do you think that's fair and equitable based on the circumstances presented?”   He answered:  “I do.”

Finally, the court canvassed the defendant about the separation agreement.   The colloquy is as follows:

THE COURT:  Thank you.

Sir, let me just ask again about the amount of child support, because that is a deviation and a significant one from the child support guidelines.   My understanding is that you're paying $300 a week now in child support to include a portion of the daycare expenses plus the $184 or $185 that the child support guidelines would suggest.   When there comes a time, as presumably there will, when Jack is no longer going to daycare, and either will not be incurring any daycare expenses or will be incurring less because he will be in school most of the day, your child support obligation continues to be $300 per week.

Do you understand that?

THE WITNESS:  I do understand that.

THE COURT:  And do you understand that I need to make that special finding because it is above and beyond the $184?

THE WITNESS:  I understand.

THE COURT:  My further understanding is that you think that's fair, even though it will go on presumably until the child is at least eighteen because Mrs. Lemay has assumed debt that you either incurred or you and she together incurred and she's assumed that debt to a greater extent than have you, is that true?

THE WITNESS:  That is true.

THE COURT:  Okay. Do you have any questions you want to ask me about that agreement knowing that having been canvassed by your own counsel and the Court, your chances in the future of coming back and getting a modification absent some very bad luck on your part, and I certainly don't hope that, is unlikely?

THE WITNESS:  I understand that.

THE COURT:  Okay. Any questions you want to ask me, sir?

THE WITNESS:  I don't think I have any.

Following the canvass of the defendant, the court entered an order dissolving the marriage and incorporating the separation agreement in the judgment.   As part of its order the court stated the following:

Now the child support guidelines would suggest the husband's obligation is the payment of $184 a week for the support of Jack. The parties are agreed that the gentleman is now paying $300 a week on the surplusage represented by his contribution to the daycare expenses that are now in effect.   It shall be the Court order that the gentlemen continue to pay the amount of $300 per week in child support and that obligation shall continue even if there comes a time when the child support is lessened and or eliminated.   That represents a deviation from the child support guidelines.   The Court's been made aware of the same, has the child support guideline available to her.   I order the same as a fair resolution of the lady's having paid significantly more of the debts which the couple has incurred over the years.1

In support of his motion to modify the child support, the defendant testified that in November 2006 his employer relocated and he lost his job as a carpenter.   He was out of work for approximately one month until he obtained new employment, but as a “subcontractor” at a lower rate of pay and with less consistent hours.   The court file reflects that on October 14, 2008 the defendant filed a motion to modify the $300 weekly payment on the ground that:  “The contractor the defendant has been subbing through has no work.”   But, apparently, this motion was never served.

The defendant continued to pay the $300 per week until December 19, 2008 when he began missing payments.   He soon settled into a pattern of paying $150 per week, a pattern which has continued until the time this motion was heard.   The total arrearage as of May 14, 2010 is $12,877.50.   On January 2, 2009 the defendant filed the pending motion to modify (# 131) the child support on the ground that:  “My income has significantly changed.”

The plaintiff's current financial affidavit shows a weekly gross of $1,089.00 and a weekly net of $776.00.   The defendant's current financial affidavit shows a weekly gross of $961.33 and a weekly net of $633.33.   The defendant has received gifts from his father to help him meet his weekly expenses, but the amount and timing of those gifts cannot be determined by the court.   A child support guidelines worksheet prepared using the numbers from the parties' current financial affidavits shows a presumptive child support obligation for the defendant in the amount of $137 per week plus 40% of the child care expense.   The child's current child care expense is $60 per week during the school year and $150 per week during the summer.

General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment.   Although this statute permits a modification upon a showing of a substantial change in the circumstances of either party, or upon a showing that the final order substantially deviates from the child support guidelines, where the original order was entered on the basis of a deviation from the guidelines presumptive amount, a modification is permitted only on a showing of a substantial change of circumstances.   Weinstein v. Weinstein, 104 Conn.App. 482, 497 (2007).   However, argues that the deviation from presumptive support agreed upon by him and by the plaintiff was never “blessed” by a specific finding on the record that application of the guidelines would be inequitable or inappropriate;  therefore, the order may be modified upon a showing that the child support substantially deviates from the child support guidelines.   See, C.G.S. § 46b-86(a).   The defendant is correct.   Although the court was meticulous in canvassing the defendant to be sure that he understood the consequences of his agreement, and made a finding that the deviation was a “fair resolution,” the court did not make a specific finding that application of the guidelines would be inequitable or inappropriate.   However, the failure to make this finding has no affect upon this motion because the defendant is entitled to a modification based upon a substantial change in circumstances anyway.

The separation agreement which was approved by the court in this case based the child support order of $300 per week upon on a guidelines presumptive amount of $184.   In addition, the agreement refers to child care expense being included.   The defendant's share of the child care expense at that time was $106 per week.

The plaintiff's net weekly income has increased from $640.38 to $776.00.   Using the income shown on the child support guidelines worksheet as the proper starting point-rather than the defendant's financial affidavit which was apparently rejected as inaccurate-the defendant's net weekly income has decreased from $1,080.00 to $633.33.   Both changes represent substantial changes in the situations of both parties.   A modification of the child support is appropriate.

The court will resolve this issue by recognizing that the guidelines presumptive support is currently $137 per week as opposed to $184 at the time of the dissolution.   The court will also find that it would be inequitable to simply apply the guidelines presumptive support in light of the continuing child care expenses and the disproportionate division of liabilities at the time of the dissolution.   A deviation is appropriate based upon § 46b-215a-3(b)(5)(A), coordination of total family support based upon division of assets and liabilities.   The court will order an upward deviation from $137 per week to $250 per week.   The defendant's motion to modify is granted accordingly.

The parties agreed that any new child support order would be retroactive to February 23, 2009.   By the court's calculation, this is 62 weeks from today.   Therefore, the defendant is entitled to a credit of $3,100 (62 X $50) against his arrearage of $12,877.50 plus any additional arrearage which has accumulated since May 14, 2010.   The net arrearage is $9,777.50.

Turning to the plaintiff's motion for contempt, there is no question that the defendant wilfully reduced his child support payments from $300.00 to $150.00 in violation of the court order.   The court finds that the defendant had the ability to make those payments as they came due.   Therefore, the court finds the defendant in contempt.   The defendant is ordered to begin making the current payments of $250.00 per week plus $50.00 per week toward the arrearage.   In addition, the defendant is ordered to pay the plaintiff's attorneys fees of $3,000.00 incurred in connection with this motion.   These attorneys fees are to be paid at the rate of $25.00 per week.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. At the hearing on the defendant's motion to modify and the plaintiff's motion for contempt, the defendant testified that he had signed the separation agreement and made representations of agreement to the court because he was “emotionally distraught” and “wanted it over.”   He also disputed that the plaintiff had paid significantly more debts than he had.   The court gives no credence to the defendant's testimony.   There is nothing in the record to suggest that the defendant ever sought to challenge the validity of the separation agreement or the orders that were issued by the court based upon it.  “[A]lthough one may sympathize with the position in which [a party] finds himself the fact remains that by the separation agreement he made his bed and now must lie in it.”  (Citation omitted.)   Nunez v. Nunez, 85 Conn.App. 735, 740 (2004)..  FN1. At the hearing on the defendant's motion to modify and the plaintiff's motion for contempt, the defendant testified that he had signed the separation agreement and made representations of agreement to the court because he was “emotionally distraught” and “wanted it over.”   He also disputed that the plaintiff had paid significantly more debts than he had.   The court gives no credence to the defendant's testimony.   There is nothing in the record to suggest that the defendant ever sought to challenge the validity of the separation agreement or the orders that were issued by the court based upon it.  “[A]lthough one may sympathize with the position in which [a party] finds himself the fact remains that by the separation agreement he made his bed and now must lie in it.”  (Citation omitted.)   Nunez v. Nunez, 85 Conn.App. 735, 740 (2004).

Pickard, John W., J.