Kanisha E. Harvin v. James Bell (2010)

MEMORANDUM OF DECISION RE PATERNITY PETITION # 101 AND SUPPORT PETITION # 106

The parties were present before this court concerning the issue of child support for the benefit of their 2 minor children.   The defendant argues, as a recipient of Supplemental Security Income (SSI), he is not obligated to pay child support.   The plaintiff contends the defendant has actual earnings, from unreported income, and should be responsible to pay child support.   The court agrees with the plaintiff.

The parties are unwed parents of 2 minor children.   Keyasia Bell was born 3/31/96 and Key Ron Bell was born 4/25/03.   The parties' relationship lasted for a period of approximately 15 years.   There were intermittent periods during the 15 years when the parties resided as an intact family.   During their relationship the defendant provided monetary support, and in kind support, for the benefit of their minor children.   The defendant testified for a period of time, when the parties were not residing together, the defendant paid the plaintiff $100 per month in child support.

In 1988, the defendant was involved in a motorcycle accident.   Due to the injuries he suffered the defendant became permanently disabled.   The defendant applied for, and was granted, SSI benefits.   Although the defendant was receiving SSI benefits, the defendant became involved in the business of selling CDs, DVDs and movies.   The defendant does not report this income.

The issue before this court is whether the defendant, being a recipient of SSI benefits, has an obligation to pay child support for the benefit of the 2 minor children.   Resolution of this question requires a review of:  (1) the relevant statutory authority and case law;  and, (2) the credibility of the witnesses.

Connecticut regulations preclude the use of SSI benefits as income for child support purposes.   See Regs., Conn. State Agencies § 46b-215a-1(11)(B)(ii).   In 2003, the Connecticut General Assembly passed Public Acts No. 03-130 which precludes a judicial authority from determining parental earning capacity as a basis for deviating from the presumptive support amount that results from the application of the child support guidelines when a party receives SSI.

General Statutes § 46b-215b(b), as amended by Public Acts 2003, No. 03-130, § 1 (effective October 1, 2003) provides:  “In any determination pursuant to subsection (a) of this section, when a party has been determined by the Social Security Administration, or a state agency authorized to award disability benefits, to qualify for disability benefits under the federal Supplemental Security Income Program, the Social Security disability program, the state supplement to the federal Supplemental Security Income Program, or the state-administered general assistance program, parental earning capacity shall not be a basis for deviating from the presumptive support amount that results from the application of the child support guidelines to such party's income.”

The clear language of the statute, and the legislative history, allow actual earnings to be considered when calculating a child support obligation.   Representative Stone testified at the May 20, 2003 public hearing on the act and stated that ‘[i]n this particular case and with this particular bill, what we're saying is that if it's determined that an obligor of child support is eligible and is receiving those benefits from the federal government, that the magistrate or the court, in awarding a child support order, cannot look to that income as earning capacity or as computed [sic] income to the obligor ․ It takes this disability income out of the mix for determining child support.’   46 H.R. Proc., Pt. 11, 2003 Sess., pp. 3459-60, Remarks of Representative Christopher R. Stone.”   The written testimony of Raphael L. Podolsky, Legal Assistance Resource Center of Connecticut, Inc., states as follows:  “This legislation attempts to resolve these problems by precluding any such persons from having the earning capacity imputed onto them under a given deviation criterion.   The legislation will apply only where a government agency has made determination of a disability.   The bill shall not in any way preclude the counting of actual income earned by a disabled person for the purposes of calculating child support liability.”   Conn. Joint Standing Committee, Judiciary, Report No. 590.

Connecticut courts have also determined SSI is not to be utilized in determining a child support obligation but actual earnings may be considered.   See generally Marrocco v. Giardino, 225 Conn. 617, 767 A.2d 720 (2001), Allard v. Allard, Superior Court, judicial district of New London at Norwich, Docket No. FA 86 0086656 (November 4, 2002, Swienton, J.), Lively v. Barnaby, Superior Court, judicial district of Tolland, Family Support Magistrate division at Rockville, Docket No. FA 96 0062215 (September 7, 2004, Lijfshitz, F.S.M.).   Biafore v. Bozeman, Superior Court, judicial district of Tolland, Family Support Magistrate division at Rockville, Docket No. FA 03 0082030 (January 18, 2005, Lifshitz, F.S.M.) (38 Conn. L. Rptr. 777).

Having determined this court has the authority to enter a child support order based upon the actual earnings of an individual receiving SSI benefits, this court must determine if the defendant had, and presently has, actual earnings.   In order to make this determination the court is required to address the credibility of the testimony presented.

It is axiomatic the trier of fact has the ability to assess the credibility of the testimony presented.  Giulietti v. Giulietti, 65 Conn.App. 813, 839, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).   The court finds the plaintiff's testimony, and that of the maternal grandmother Loria Harvin, to be credible.   Contrarily, the court finds the defendant's testimony to be inconsistent, conflicting and suspect.   The credible testimony clearly indicated the defendant was involved, and continues to be involved, in the business of selling CDs, DVDs and movies.   In fact, within the last several weeks the defendant was conducting his business of selling CDs, DVDs and movies at a local flea market.

The plaintiff has met her burden of proof.   The plaintiff, clearly and decisively, proved the defendant had actual earnings in the past and continues to have actual earnings from the sale of CDs, DVDs and movies.

Accordingly, the court orders as follows:

1.  Files NNH FA02-4042969 and NNH FA10-4042969 are companionized.   The controlling docket number for future filings is NNH FA10-4042969.

2. The defendant is ordered to pay current support of $100 per month and $20 per month on any arrears.   The arrears, as of 1/01/11 are $4,100.

3. An immediate income withholding is ordered.

4. The parties are to provide medical/dental insurance as available through their employer at reasonable costs as defined by Connecticut General Statutes § 46b-84.

5. The defendant is ordered to pay 50% of any un-reimbursed medical/dental expenses for the benefit of the minor children directly to the plaintiff.

6. All orders effective 1/01/11.

David A. Dee-Family Support Magistrate

12/21/10

Dee, David A., F.S.M.