Nancy Bilby v. Steven Bilby (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR MODIFICATION OF CHILD SUPPORT, POSTJUDGMENT (# 304.00 AND # 420.00)

The marriage of the parties was dissolved by decree of the Superior Court (# 260.00) at the Regional Family Trial Docket on February 3, 2005, which decree was amended (# 272.00) on March 18, 2005.   The parties are the parents of two minor children, Nathaniel, born February 22, 1997, and Christopher, born March 7, 2000.   In relevant part, the decree awarded sole custody of minor children to the defendant father (“father”), with rights of visitation awarded to the plaintiff mother (“mother”).   In addition, the mother was ordered to pay the sum of $218.00 per week to the father as and for child support consistent with the Child Support and Arrearage Guidelines (“Guidelines”), as well to contribute to job-related day care and unreimbursed medical bills for the children.

Until November 2008, the father had provided the primary residence for the children, however, at that time, the older boy left his father's home and came to live with the mother.   Shortly thereafter, the mother (“mother”), now known as Nancy Marenakos, filed a Motion for Modification (# 304.00) dated March 25, 2009, which motion was served on the father on March 28, 2009.   For a variety of reasons, primarily related to the ongoing custody dispute, the motion was not addressed.   Since that time, a further change occurred, in that in May of this year, the younger son, Christopher, also left his father's home and now resides with the mother.   As a result, she has filed a new motion for modification (# 420.00) dated May 17, 2011, which was served on the father on May 20, 2011.

The court heard the parties on August 15, 2011, and again on October 18, 2011 at which time the court permitted the parties to submit brief memoranda of law (no longer than 10 pages) regarding the issue of child support no later than October 21, 2011.   The issues of contempt, retroactivity, arrearages, and offsets, as well as attorneys fees were reserved to the time of the hearing related to the custody of both minor children.

QUESTION PRESENTED

Where the decree dissolving the marriage has awarded sole custody of the minor children to one parent, and the children have changed their residence to the other for a substantial period of time, while a motion to modify custody is pending, can the court modify the child support order on a temporary basis?   This court answers the question in the affirmative.

A fundamental premise, articulated by statute, is that “the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.”  General Statutes § 46b–84(a).   This duty is, in essence, joint and several.   Moreover, it has been long held, that this “duty to support is wholly independent.”  Raymond v. Raymond, 165 Conn. 735, 742 (1974);  and the level of support is dependent upon, “the needs of the child, within the financial abilities of the parent.”   Foster v. Foster, 84 Conn.App. 311, 322 (2004).   In a series of recent cases, where a court is called upon to make a determination of the amount of child support, the Connecticut Supreme Court has held that the court must consider the Guidelines first and foremost, as well as the statutory criteria.   Specifically, it was held that the “guidelines established pursuant to 46b–215a ․ shall be considered in all determinations of child support amounts,” Maturo v. Maturo, 296 Conn. 80, 90–92 (2010).   This basic premise of the primacy of the Guidelines was re-emphasized in Misthopoulos v. Misthopoulos, 297 Conn. 358, 367–68 (2010).   Moreover, the court has an affirmative obligation to make a specific finding of the “presumptive amount” of child support.  Kiniry v. Kiniry, 299 Conn. 308, 319–20 (2010), and, in all cases where the combined net income of the parties exceeds the maximum amount shown in the tables, the highest percentage therein is to be considered the “presumptive ceiling.”  Maturo v. Maturo, supra at 106.

Bearing in mind the joint nature of the parental responsibility for support, it is significant to note that the initial Guidelines calculation is called the “basic child support obligation” which sum is the aggregate amount both parents must contribute for support.   This calculation is made prior to the determination of the actual contribution of the obligor to the “custodial parent.”   The latter is defined as “the parent who provides the child's primary residence.”  (Emphasis added.)   Child Support and Arrearage Guidelines Regulations § 46b–215a–1(8).

In general, the modification of a child support order is based upon a substantial change of circumstances since the date of the last order.   Borkowski v. Borkowski, 228 Conn. 729, 741–43 (1994);  Sanchione v. Sanchione, 173 Conn. 397, 408 (1977), Sardilli v. Sardilli, 16 Conn.App. 114, 119 (1988).   Accordingly, since the mother is currently providing the primary residence for both minor children at this time, and she has done so for a significant period of time, particularly in the case of the older child, under all the circumstances, this constitutes a substantial change of circumstances.   Therefore, it also follows that she meets the definition of “custodial parent” for purposes of child support, and that she is entitled to receive a contribution from the father for the support of both children.

FINDINGS

The Court having heard the parties, reviewed the file, and considered the evidence, as well as the factors enumerated in General Statutes § 46b–56, 46b–83, 46b–84, 46b–86, and 46b–215b, including the Child Support and Arrearage Guidelines, in particular § 46b–215a–1, et seq., hereby makes the following findings:

1. That the plaintiff mother currently provides the principal residence for the minor children Nicholas and Christopher Bilby;  that in the case of Nicholas, she has provided the primary residence since November 2008;  that in the case of Christopher, she has provided the primary residence since May 2011;  that this constitutes a substantial change of circumstances;  and that therefore she is the “custodial parent” within the meaning of § 46b–215a–1(8) of the Child Support and Arrearage Guidelines Regulations.

2. That both minor children are in need of support;  and that it is in the best interest of both minor children that the mother receive child support contribution from the father.

3. That based upon the gross income as set forth on their respective current financial affidavits, as on file with the court, the net income of the father is $4,891;  and that the net income of the mother is $593.00 per week.

4. That based upon the combined net incomes of the parties, the presumptive level of support is $636.00 per week;  that the father's share is $567.00 per week;  that the combined net income of the parties exceeds the maximum table amount of $4,000.00 per week;  that therefore the presumptive ceiling is 15.89% of combined net income in excess of* $4,000.00 per week;  that under all the circumstances, the child support amount for the combined net income in excess of $4,000.00 per week should be calculated at 10.011% or $148.00 per week;  that the father's share of the child support obligation for the combined net income in excess of $4,000.00 per week is $132.00 per week;  and that the father's total child support obligation is $699.00 per week or $3,029.00 per month.

ORDER

The foregoing motions for child support having been heard, they are HEREBY GRANTED and IT IS HEREBY ORDERED THAT:

1. Commencing December 1, 2011, and the first day of each and every month thereafter, the father shall pay to the mother the sum of $3,029.00 per month as and for child support, 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.   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. The father shall continue to maintain health insurance for the minor children, at his sole expense;  and that unreimbursed medical expenses of both minor children shall be paid 79% by the father and 21% by the wife.   The provisions of General Statutes § 46b–84(e) shall apply.

3. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52–362(b) in order to secure the payment of the child support order.

4. All issues of contempt, retroactivity, arrearages, offsets, and attorneys fees are hereby reserved to the final hearing regarding custody.

THE COURT

SHAY, J.

*Editor's Note:  This reported opinion includes a correction dated and docketed on November 15, 2011, which corrected this clause which originally read, “of combined net income up to $4,000.00 per week,” to read “of combined net income in excess of $4,000.00 per week.”  (Emphasis added.)

Shay, Michael E., J.