David Alan Roe v. Stephanie B. Roe (2010)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR REARGUMENT # 127

The court granted the plaintiff's motion for reargument on his motion # 119 for modification, which the court granted in part and denied in part in a written decision dated June 28, 2010.  “The purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.'  “ (Citations omitted;  quotations omitted.)  Jaser v. Jaser, 37 Conn.App. 194, 202, 655 A.2d 790 (1995).   Reargument having been granted, the relief sought in the motion is also granted, as set forth below.   The court's prior decision on motion # 119 is vacated, and that motion is also granted, again as set forth below.

The parties appeared with counsel for reargument on August 20, 2010, at which time the court found that it had incorrectly construed the evidence offered at the hearing on motion # 119.   The evidence established that in April the plaintiff experienced a significant reduction in his income, and that, taking into consideration and annualizing the deferred compensation he received in February, his income is $1,799 gross and $1,339 net per week, and defendant's income is $944 gross and $826 net per week.   The presumptive support amount is for the plaintiff to pay child support in the amount of $274 per week plus 49% of qualifying child care and unreimbursed medical expenses for their two minor children through the date of the older child's graduation from high school on June 16, 2010, and thereafter $207 per week plus 52% of qualifying child care and unreimbursed medical expenses for their remaining minor child.

Under General Statutes § 46b-86(a), child support orders may be modified “upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.   There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial.”   Since the current child support order of $350 per week varies by more than 15 percent from each of these presumptive amounts, the plaintiff has met his burden of showing a substantial change in circumstances since the last order.

The defendant urged the court not to adopt the presumptive support amounts for two reasons:  first, that it would be inequitable not to deviate from the presumptive amount because the father's lack of contact with the children has substantially increased the expenses the mother must incur for the children in excess of those of a custodial parent whose children enjoy a normal visitation schedule with the other parent,¹ and second, that, even if not formally deviating from the presumptive amount, the court should order support at slightly less than 15% greater than the presumptive amount.

As to the first argument, the court is aware of no authority that allows a court to consider less frequent than normal visitation as a deviation criterion.  “Section 46b-215a-3(a) of the Regulations of Connecticut State Agencies provides that the support amounts calculated under the child support guidelines ‘are presumed to be the correct amounts to be ordered ․’ Those amounts may be rebutted, however, ‘by a specific finding on the record that such an amount would be inequitable or inappropriate in a particular case ․’ “ Lefebvre v. Lefebvre, 75 Conn.App. 662, 667, 817 A.2d 750, cert. denied, 263 Conn. 921, 822 A.2d 243 (2003).   Under the guidelines, the “recommended current support order shall equal the presumptive current support amount for the noncustodial parent unless a deviation criterion ․ applies.”   Regulations, Connecticut State Agencies, § 46b-215a-2b(c)(7).   The defendant urged the court to apply the deviation criterion of “other equitable factors,” but the court does not find it appropriate to do so.   The guidelines expressly allow a deviation for visitation that substantially exceeds the normal schedule,² but not for the converse.   Moreover, the only evidence here as to the plaintiff's access with the minor child was his testimony that he had not seen her, other than at the high school graduation of the older daughter, in two years, but “not by my choice.”   These facts would not establish an adequate basis to adopt the defendant's argument, even should such be legally permissible.

The defendant's second argument was that, since only amounts varying by 15 percent or more from the presumptive amount are regarded by General Statutes § 46b-86(a) as a substantial deviation warranting modification, the court should set the support at an amount just under 15 percent greater than the presumptive amount.   The court declines to do so.   The law requires judges to set support at the presumptive amount unless a deviation criterion applies.   In § 46b-86(a), the legislature has established a standard of substantiality for modification of support.   The 15 percent provision of § 46b-86(a) is not a basis for setting an order, but instead serves as a threshold for modification by providing a simple statutory formula for determining whether a change in the circumstances of either party is sufficiently substantial to warrant modification of child support.   For example, suppose that the court adopted the defendant's argument and set child support for the one remaining child at $237, which would be 114.49% of the presumptive amount, but without formally deviating from the presumptive amount.   The statutory standard for modification, a deviation of 15% from the current order would thus still be in effect;  and a reduction in defendant's net income of only $50 per week, assuming that the plaintiffs remained the same, would result in a new presumptive amount of $201, an amount that would be more than 15 percent from the $237 order and provide the basis for a modification;  yet, such a change in income scarcely could be regarded as a substantial change of circumstances.   On the other hand, if the court here set support at the presumptive amount of $207 per week, then, assuming that the defendant's remained the same, the plaintiff's net weekly income would have to decrease by more than the $291, surely a substantial change in his circumstances, to meet the 15% threshold for modification.   The court therefore declines the defendant's request here, which the court believes would thwart the legislative purpose contained in § 46b-86(a).

Under General Statutes § 46b-86(a),³ a final order for support may be modified retroactively if a marshal served the motion seeking modification.   A marshal's return appended to the motion for modification filed with the court shows that the motion was served by marshal on the defendant on May 8, 2010.   At the hearing on the motion for reargument, the defendant argued that retroactivity was discretionary and urged the court not to make the modification retroactive, but only prospective.   Both parties accepted the court's invitation to submit a memorandum of points and authorities on whether the court has such discretion.   The authorities submitted by counsel and those separately found by the court in its research confirm that retroactivity is a discretionary decision.   See, e.g., Cannon v. Cannon, 109 Conn.App. 844, 850-51, 953 A.2d 694 (2008).   The defendant argued against retroactivity because the plaintiff did not experience his reduction in income until April, and presumably would also ask the court to consider the father's lack of access with the minor child.   But the court agrees with the plaintiff that the principle behind the child support guidelines is the income shares model.⁴  See, e.g., Maturo v. Maturo, 296 Conn. 80, 102 fn. 11 (2010), noting that “the income shares model ․ serves as the basis for the guidelines.”   The facts of this case do not provide a sufficient basis for the court to exercise its discretion not to apply that principle with regard to retroactivity.   By the date the motion was served, the plaintiff's income had declined to the amounts found here (assuming, as this court has done, an annualization of the deferred compensation he received in February) and represented the funds he had prospectively available for child support.   Under these circumstances, the court exercises its discretion to order retroactivity as follows:  The plaintiff shall pay child support in the amount of $274 per week plus 49% of qualifying child care and unreimbursed medical expenses for the parties' two minor children from the date of service on May 8, 2010, through the date of the older child's graduation from high school on June 16, 2010, and thereafter in the amount of $207 per week plus 52% of qualifying child care and unreimbursed medical expenses for their remaining minor child.

The retroactivity order will probably result in the plaintiff having overpaid for child support.   Such overpayments shall be credited toward his obligation to share in qualifying child care expenses or unreimbursed medical expenses.   If there is still an overpayment owed by the time the younger child is no longer a beneficiary of child support, the plaintiff will reimburse the defendant the balance at the rate of $41 per week.

BY THE COURT

STEPHEN F. FRAZZINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. The child support guidelines commission has described as the “normal visitation schedule” for a noncustodial parent as “typically consisting of two overnights on alternate weekends;  alternate holidays;  some vacation time;  and other visits of short duration, which may occasion an overnight stay during the week.”   Child Support and Arrearage Guidelines (2005), preamble, § (j)(4), p. xiii..  FN1. The child support guidelines commission has described as the “normal visitation schedule” for a noncustodial parent as “typically consisting of two overnights on alternate weekends;  alternate holidays;  some vacation time;  and other visits of short duration, which may occasion an overnight stay during the week.”   Child Support and Arrearage Guidelines (2005), preamble, § (j)(4), p. xiii.

FN2. The Child Support Guidelines provide a deviation for shared physical custody, which the Child Support Guidelines Commission defined as “where each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule.”   Child Support and Arrearage Guidelines (2005), preamble, § (j)(4), p. xii.   See § 46b-215a-3(b), Regulations, Connecticut State Agencies, captioned “Deviation criteria,” which provides, in relevant part, as follows:(6) Special circumstancesIn some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity.   Such circumstances are limited to the following:(A) Shared physical custody.When a shared physical custody arrangement exists, deviation 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..  FN2. The Child Support Guidelines provide a deviation for shared physical custody, which the Child Support Guidelines Commission defined as “where each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule.”   Child Support and Arrearage Guidelines (2005), preamble, § (j)(4), p. xii.   See § 46b-215a-3(b), Regulations, Connecticut State Agencies, captioned “Deviation criteria,” which provides, in relevant part, as follows:(6) Special circumstancesIn some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity.   Such circumstances are limited to the following:(A) Shared physical custody.When a shared physical custody arrangement exists, deviation 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.

FN3. General Statutes § 46b-86 provides, in relevant part, that “(a) No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”.  FN3. General Statutes § 46b-86 provides, in relevant part, that “(a) No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.”

FN4. “Basic principles.   The Connecticut Child Support Guidelines are based on the Income Shares Model.   The Income Shares Model presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together.   Underlying the income shares model, therefore, is the policy that the parents should bear any additional expenses resulting from the maintenance of two separate households instead of one, since it is not the child's decision that the parents divorce, separate, or otherwise live separately.”   Child Support and Arrearage Guidelines (2005), preamble, § (d), p. iv..  FN4. “Basic principles.   The Connecticut Child Support Guidelines are based on the Income Shares Model.   The Income Shares Model presumes that the child should receive the same proportion of parental income as he or she would have received if the parents lived together.   Underlying the income shares model, therefore, is the policy that the parents should bear any additional expenses resulting from the maintenance of two separate households instead of one, since it is not the child's decision that the parents divorce, separate, or otherwise live separately.”   Child Support and Arrearage Guidelines (2005), preamble, § (d), p. iv.

Frazzini, Stephen F., J.