David Montgomery v. Melanie Montgomery (2011)

MEMORANDUM OF DECISION

The plaintiff in this action seeks an order for child support from the defendant who receives alimony from the plaintiff who has custody of their minor children.

The issue raised by the defendant is whether she can be ordered to pay child support from her only income—alimony.

There is very limited case law in Connecticut on that issue.   The plaintiff has cited one case in Connecticut, McGoldrick v. McGoldrick, 17 Conn. L. Rptr. 500, which granted support from a party where the only income was alimony from the other party.

The court has examined the statutes and guidelines that pertain to child support.   The court notes that pages 1, 2 and 3 of the guidelines provide definitions.  “Gross income” is defined on page 2 as follows:  “Gross Income means the average weekly earned and unearned income from all sources before deductions, including but not limited to items listed in subparagraph (A) of this subdivision, but excluding the items in subparagraph (B) of this subdivision.”   Alimony is not listed in subparagraph (B) but it is mentioned in subparagraph (A) when it is paid by a party who is not party to the support determination.   The court will note the norm in most support obligations is that the party who pays the alimony is not the custodial parent and therefore the form used to calculate obligations was created for that norm.   Even in cases where the custodial parent is receiving alimony, there are obligations of that parent to pay for expenses of the child that are incurred for uninsured medical expenses and day care expenses even though their income is solely in the form of alimony from their spouse or former spouse.   Further, General Statutes § 46b–215b(c) provides “In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in sections 46b–84, 46b–86, 46b–130, 46b–171, 46b–172, 46b–215, 17b–179 and 17b–745.”

A parent is obligated to provide support for a child.   Therefore, this court has determined it has the authority to order support from a person who is receiving alimony as that alimony is income.

The defendant has also claimed that there should be a deviation from the Child Support Guidelines.   The parties shall prepare a guideline worksheet and arrange to appear before this court so that a determination can be made as to the amount of support to be ordered, and what deviation, if any, should be established under the particular circumstances of this case.

The court also notes that this case was heard as a contested case at a time when neither party was employed, or had income, so that assets that the parties had were utilized to take care of the expenses of the parties.   The court also ordered a percentage of net income from the plaintiff to the defendant as alimony when he secured employment.   The court did not deal with the child support issue because the support came from marital assets.

The parties are to arrange with the Family Caseflow Coordinator a date for a hearing to determine how much support the defendant should pay from alimony.

SO ORDERED.

BY THE COURT,

Barall, J.T.R

Barall, Herbert, J.T.R.