Iwona Pierzchalski v. Jarosla Pierzchalski (2010)

MEMORANDUM OF DECISION REGARDING MOTION TO MODIFY CHILD SUPPORT POST-JUDGMENT # 159

Before the court is the plaintiff's motion to modify child support, post-judgment.   The motion is dated June 8, 2010 and was served upon the defendant on June 23, 2010.   The plaintiff seeks to modify a child support order of $75.00 per week claiming a substantial change of circumstances.

At the time of the divorce, the plaintiff earned $440.00 per week as a clerk/bookkeeper with supplemental income of $138 per week as a child care assistant for a total net of $578.00 per week.   The defendant was a helper at New England Remodeling Company, grossing $320.00 per week and netting $268.32 per week.   The child support guidelines indicated a recommended child support of $49.28 per week and 43% of unreimbursed medical expenses to be paid by the father.

Notwithstanding that recommended child support order, with court approval, the parties deviated to a child support order of $75.00 per week at the time of the parties' dissolution of marriage on March 28, 2003.   The defendant was also ordered to pay one-half of day care and one-half of health expenditures for the child not covered by the health insurance maintained for the child by the plaintiff.   He is also to pay one-half of extracurricular expenditures for the child in accordance with his ability to pay.

The parties' child is presently ten years old.

The plaintiff testified (and her testimony was not rebutted) that the defendant never contributes toward extra-curricular expenses.

The plaintiff earns $1,206 per week gross and $822 net, currently.   She is an accountant in the State Comptroller's office.   She pays $97.00 per week for the child's day care, $20 per week for her dance and $22.50 per week for her swimming.   She continues to carry medical and dental for the child.

The plaintiff is claiming that in considering her motion, the court should find that the defendant has an earning capacity substantially greater than his present income as an electrical helper, as shown on his financial affidavit.

The defendant filed a financial affidavit that indicated he earns $400 per week net as a electrical helper, and, that he started the job on July 22, 2010.   He testified that no taxes were taken out of the money and that he was working for a friend.   If that were the end of the court's inquiry, the child support under the Guidelines would indicate that the plaintiff's motion to modify should fail inasmuch as his obligation, even without considering the qualified child, is presumptively $45.00 per week.

One month prior, on July 19, 2010, he submitted a financial affidavit to the court that showed he still owned and worked at his company Ground Up Construction and that he was paying himself $8.25 an hour for a forty-hour week, for $330.00 per week.   His gross and net were the same.   The defendant testified that he stopped working for himself three days later and went to work as a helper because he had no construction work at his own business.

The court does not find the defendant credible and finds he has an earning capacity substantially greater than $400.00 per week.   Further the court finds that it is more probable than not that he is earning significantly more money than that sum and is lying to the court.   This conclusion is reached after observing his demeanor, listening to his testimony and comparing that to other credible evidence.

In the calendar year ending June 30, 2010, the court finds that the defendant earned at least $50,000.   Since there is no proof that he pays any taxes and there is evidence that he does not pay them, the court is considering his gross to also be his net.   While there were fluctuations in his earnings over the months, as with many tradespeople, there is only the defendant's bald assertion that his income has stopped from this work for the court to rely on.   The court notes that at least at the end of June 2010, he continued to spend money on discretionary spending as if the spigot was not going to dry up.   Certainly, the defendant's claim of lost business is not resulting in the deprivation of his pleasure items like bars, dance clubs, paying for his Hummer and the like, it should not end his duty to pay child support at the current level.   If the defendant is not earning $50,000 per year it is because he chooses not to.   He has the earning capacity to do so.   He has demonstrated it over time, even in lean economic times, and he is simply not credible when he claims otherwise now.

The defendant is under a child support obligation for another child, not of this marriage.   That individual constitutes a qualified child under the child support guidelines.   However, at the time the parties were divorced, that child was not treated as a qualified child under the Guidelines worksheet submitted to the court.   On July 14, 2010 FSM Dee modified the child support obligation upward regarding that child and ordered the defendant to pay $142.00 per week in current support and $18 per week on arrears.   The defendant is seeking to reargue that matter.

The Guidelines indicate a child support order of $125.00 per week presumptively under the facts of this case for the instant matter as found by this court.

The court finds a substantial change of circumstances.   The court modifies the defendant's child support obligation to $125.00 per week effective retroactively to June 23, 2010.   Therefore, the defendant must pay the plaintiff $50.00 per week as all arrearage for the period of June 23, 2010 to August 25, 2010, or $500.00 which shall be paid at the rate of $25.00 per week for a total support order of $150.00 per week to be paid on Friday of every week.   All other orders under the original judgment are to remain in effect.

MUNRO, J.

Munro, Lynda B., J.