Nicole I. Simpson-Givens v. John A. Givens, Sr. (2011)

MEMORANDUM OF DECISION

This matter comes before the court on the plaintiff's motion to modify child support filed June 7, 2010 (# 138).   Both parties were represented by counsel and presented to the court, in addition to their financial affidavits, two different child support guideline worksheets.   The court makes the following findings after reviewing the testimony of the parties, the supporting documents filed and the evidence received by the court.

The parties were divorced in December of 2006.

They have one child, Ian, who is now seven (7) years old.

At the time of the dissolution, the child support was established at $116 per week paid by the defendant father to the plaintiff mother.   Per their separation agreement which was incorporated into the court's judgment, the parties shared equally the unreimbursed and/or uncovered medical expenses for Ian, as well as the reasonable and necessary daycare expenses to allow the plaintiff to work.

Since the date of the dissolution, the plaintiff has assumed a second job.   She is a physician and now the medical director for Mass Mutual, earning an annual salary of $150,000.   This is a change of job, but not profession, since the dissolution;  and an increase in salary.   Her second job, also as a physician, pays her just under $70,000 per annum.   In a decision dated December 22, 2010, the court (Caruso, J.) ruled that daycare expenses for the second job could not be considered a financial obligation for the defendant under the child support guidelines.

The defendant is a self-employed plumber.   The key matter to be determined in this case is the establishment of an annual income for him.

The plaintiff is seeking a support order based solely on her primary employment, arguing that since the court ruled that the second job should not be considered for childcare reimbursement, it should not be considered for purposes of calculating income for support determination.   Clearly, the Guidelines instruct that “gross income [includes] hourly wages for regular, overtime and additional employment not to exceed 45 hours total paid hours per week” (Child Support and Arrearage Guidelines Regulations § 46b-215a-1(11)(A)(ii)).   Accordingly, for the purposes of determining the support amount in this matter, the court shall consider the plaintiff's primary employment plus five (5) hours from her second job.   The court calculates that to be $3,269 gross income per week.¹

Determining the defendant's income is not as simple.   His financial affidavit reports a weekly gross of $2,020 which would equal an annual income of slightly more than $105,000.   Based on the testimony of both parties and the exhibits filed, the court does not find the defendant's financial affidavit to be credible.   When he appeared in court for the May 12, 2010 hearing before Judge Caruso, he testified that his gross annual income was $166,000.   At this hearing he offered testimony that his presumptive annual income for 2010 would be $140,000, although his accountant's prediction was that it would be $110,000.   The plaintiff produced a loan application signed by the defendant on May 25, 2010, reporting an annual income of $190,000.²  The defendant testified that he had purchased three pieces of real estate in the last several years which involved payments of deposits totaling $180,000.

The defendant also testified as to various business difficulties which included the poor economy, as well as losing some $30,000 to embezzlement, allegedly by his payroll service, and still owing the same amount in taxes to the federal and state revenue services.   However, he also testified that he owns the property which houses his business, has four plumbing employees and a part-time “girl.”   He owns five motor vehicles, including two box trucks and a van.   There was no testimony that he was forced to lay-off any of his employees, just references to a poor economy in general.

The court finds that the defendant's gross annual income is at least $160,000 and it has used that amount to calculate the support.   Applying that income along with the plaintiffs income established at $3,269 (as referenced above) would result in a combined net income for the parents of $4,470.   The highest support based on our Guidelines, capped at the $4,000 level, would be $473 per week.   The court finds no compelling reason to deviate upward from that cap.   Based on that amount, the defendant's percentage share would be 50% or a weekly order of $237.   The balance of the support calculation would result in the defendant being responsible for 44% of unreimbursed or uncovered medical expenses and the same amount for reasonable and necessary job-related child care expenses.³

The plaintiff has asked that the modification be retroactive to the original date of the filing and service which was June 7, 2010.   The defendant had no serious objection and left the matter to the court.   A review of the file shows that the plaintiff requested a continuance when the matter first appeared due to employment issues, and a new hearing date was set for June 23, 2010.   Further reclaiming of the motion was made as the parties were involved in other child-related issues.   The file also reveals that the defendant was slow in providing the plaintiff with requested discovery leading to an order of the court in September compelling compliance by October 1, 2010.   Accordingly the court will order that the modification be retroactive to June 23, 2010.

There is a difference of $121 between the new order of $237 and the original order of $116.   From June 23, 2010, through the week ending January 29, 2011, there are 31 weeks, resulting in an arrearage of $3,751, assuming the defendant is current on the original support order and this order is subject to adjustment if the support is not current or if it contains excess payments to the plaintiff.   The defendant shall pay an additional $47 per week against the stated arrearage for a total weekly order of $284 commencing the week of January 23, 2011.   The order shall be secured by a contingent wage withholding order.

SO ORDERED.

BY THE COURT

Adelman, J.

FOOTNOTES

FN1. The plaintiff reports her weekly income from her 1st job is $2,885.00.   Defendant's exhibit “A” shows that her hourly rate at the second job is $76.74..  FN1. The plaintiff reports her weekly income from her 1st job is $2,885.00.   Defendant's exhibit “A” shows that her hourly rate at the second job is $76.74.

FN2. There was a second, but unsigned, application that reported a significantly higher annual income.   The defendant testified that must have been an error and that is why he never signed it.   The court did not take this document into consideration..  FN2. There was a second, but unsigned, application that reported a significantly higher annual income.   The defendant testified that must have been an error and that is why he never signed it.   The court did not take this document into consideration.

FN3. In their Separation Agreement the parties agreed on an equal division of these items.   That request was not renewed during the hearing or in the claims for relief and the court finds no reason to deviate from the Guideline calculation..  FN3. In their Separation Agreement the parties agreed on an equal division of these items.   That request was not renewed during the hearing or in the claims for relief and the court finds no reason to deviate from the Guideline calculation.

Adelman, Gerard I., J.