Rhonda Siletto v. Richard Molina (2011)

MEMORANDUM OF DECISION RE MOTIONS # # 120, 124, 126 & 128, POST–JUDGMENT

The marriage of the parties was dissolved by decree of this court on April 7, 2004.   At the time of the decree, the parties entered into a Separation Agreement (# 108.10) (“Agreement”) which was incorporated by reference therein.   The parties have two minor children:  Zoe Faith Molina, born April 8, 2000, and Luke Kenyon Molina, born November 5, 2002.   Both children reside primarily with the plaintiff wife (“wife”).   In relevant part, Article 10.1 of the Agreement provides that the defendant husband (“husband”) shall pay to the wife the sum of $250.00 per month as and for child support, which sum includes $56.00 as and for his contribution toward the work-related child care expenses of the wife.   In Article 10.2 of the Agreement the parties acknowledged that the child support order constituted a deviation from the Child Support Guidelines given that they believed that, as a self-employed person, the husband's net income as shown on his financial affidavit was not fully reflective of his future earnings, in other words, his greater earning capacity.   The parties each waived alimony.   In addition, the wife agreed to maintain health insurance for the benefit of the minor children, and the parties agreed to share unreimbursed medical expenses equally.

The matter comes before this court by way of motions for modification of child support filed by each party (# 120.01 and # 124.00), the husband's Motion for Protective order (# 126.00), which both parties agreed was moot and was therefore marked off, and the wife's Motion for Contempt (# 128.00) dated June 8, 2011.

At all times since the date of the decree, the wife has been employed as an art teacher in the Norwalk Public School System.   Based upon her gross bi-weekly income as shown on her financial affidavit, the wife's net weekly income is $1,111.00.   At the time of the decree, she reported a net weekly income of $785.00.   Overall, her financial situation, including her net income, as shown on her current financial affidavit has improved.

The husband is a decorative artist, who has, since the decree, found difficulty finding employment in that area.   He has, however, taken a succession of jobs related to painting and carpentry.   Currently, he is employed by Village Creek Boathouse in Norwalk refinishing boats.   He testified that he normally works no more than 30 hours per week at $16.00 per hour, and has been employed there since April of this year.   Assuming appropriate deductions for taxes, his net income is $379.00 per week.   At the time of the decree, he reported a net weekly income of $548.00.   Although there has been an increase in his retirement assets, his overall financial circumstances, including his net income, as shown on his financial affidavit since the date of the decree is substantially worse.

However, of more significance, the husband has been in a long-term domestic partnership, and the evidence is clear that he has received regular gifts from his partner, which monies have been used to pay his child support and credit card bills, among other things, thus resulting in an extraordinary reduction in his living expenses, including housing.   He admits that he is currently in arrears in his child support obligation, and the wife testified that there is an arrearage of $2,950.00.

The matter was heard by the court on July 6, 2011, at which time the court heard the testimony of both parties and admitted certain evidence.   The court found that the husband had been less than candid and forthcoming in his testimony, as well as on his financial affidavit and in the discovery process leading up to the hearing.   At that the conclusion of the hearing, the court made certain oral findings, some of which are reiterated herein, and held the evidence open until July 8, 2011, by which time the parties were ordered to file corrected financial affidavits and child support guidelines worksheets.   The wife fully complied with the order of the court in a timely fashion, while the husband has failed to make a timely filing of his corrected financial affidavit to date.   The husband has asked that any order be retroactive to the date of service of his motion to modify.

FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes §§ 46b–56, 46b–82, 46b–84, 46b–86, and 46b–215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:

1. That a finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).

2. That the evidence supports a finding that there was a clear and unequivocal order of the court;  that the husband has failed to comply with the said order;  and that the husband's failure to do so does not amount to a wilful breach, and, therefore, he is not in contempt thereof.

3. That there is a current child support arrearage of $2,950.

4. That in order to modify an order of child support, the court must make a finding that there has been a substantial change of circumstances of either party since the date of the last order or a finding that the final order for child support substantially deviates from the child support guidelines.   Santoro v. Santoro, 70 Conn.App. 212, 218 (2002);  and that where, as here, a court has previously entered an order of child support that substantially deviates from the child support guidelines and has made a specific finding that the application of the child support guidelines amount would be inequitable or inappropriate in accordance with the established deviation criteria, that particular order is not modifiable on that grounds alone.  Weinstein v. Weinstein, 104 Conn.App. 482, 495–96 (2007).

5. That the evidence supports a finding that there has been a substantial change of circumstances since the date of the last order, in that the husband's net weekly income has substantially decreased, and the wife's net income has substantially increased.

6. That modification of a child support order may be retroactive to the date of service, and that it is within the discretion of the court to grant such retroactive modification.  Shedrick v. Shedrick, 32 Conn.App. 147, 151 (1993);  and that the evidence supports a finding that service of the postjudgment Motion for Modification was made pursuant to General Statutes § 46b–86(a) and § 52–50 on December 22, 2010.

7. That under all the circumstances, it would not be equitable and appropriate or in the best interest of the minor children to apply the modification of the child support order retroactively.

8. That the evidence supports a finding that the husband's current gross income from employment is $480.00 per week, based upon an average of thirty hours paid at the rate of $16.00 per hour.

9. That all child support awards must be made in accordance with the Child Support and Arrearage Guidelines.  Maturo v. Maturo, 296 Conn. 80, 94–95 (2010).

10. That the net weekly income of the wife is $1,111.00;  and that the net weekly income of the husband is $379.00.

11. That based upon the net income of the parties, the presumptive basic child support is $367.00 per week;  and that the husband's share would be $93.00 per week;  that the husband's contribution to unreimbursed medical expenses would be 19%;  and the husband's contribution to the work-related child care expenses of the wife in the amount of $22.50 would be $5.00 per week.

12. That the Court finds it is appropriate and equitable to apply the deviation criteria set forth in § 46b–215a–3(b)(1)(D) of the Child Support and Arrearage Guidelines Regulations in that as a direct result of the regularly recurring contributions or gifts of the husband's domestic partner, he has experienced an extraordinary reduction of his living expenses;  and that therefore, it is equitable and appropriate that he pay to the wife the sum of $150.00 per week as and for child support, $30.00 per week toward the arrearage, and $6.00 as and for his contribution toward the work-related day care expenses of the wife, for a total weekly payment of $186.00;  and that his contribution toward the unreimbursed medical expenses of the minor children, as defined in Article 6.4 of the Agreement, shall be 25% thereof.

ORDER

IT IS HEREBY ORDERED THAT:  (1) Commencing July 16, 2011, and weekly thereafter, the husband shall pay to the wife the sum of $156.00 as and for child support, which sum includes $6.00 as and for a contribution to the work-related child care expenses of the wife, until such time as the oldest child shall reach the age of eighteen years or shall be otherwise emancipated, at which time child support for the remaining child shall be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct.   The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b–84(b);  (2) Commencing July 16, 2011, and weekly thereafter, the husband shall pay to the wife the sum of $30.00 until such time as the arrearage in the amount $2,950.00 is paid in full;  (3) Unreimbursed medical expenses for the minor children incurred on or after July 16, 2011, shall be divided 75% by the wife and 25% by the husband;  and (4) the Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52–362(b) in order to secure the payment of the total child support order, including payment toward the arrearage, of $186.00 per week.

THE COURT

SHAY, J.

Shay, Michael E., J.