Cynthia Foster v. Steven Shaw (2011)

MEMORANDUM OF DECISION RE MOTIONS TO MODIFY (NOS. 119 AND 120)

A review of the record reveals that the parties were divorced, pursuant to an agreement dated September 18, 1997.   The parties had two minor children, Crystal Shaw born January 20, 1992 and Curtis Shaw born July 22, 1993.   The agreement called for joint legal custody but with physical custody in the mother and with reasonable and liberal rights of visitation in the father.   The parties also agreed that the father would maintain medical insurance for the benefit of the children and that they would share equally any unreimbursed health-care expenses, “such expenses to include but are not limited to all medical, including extraordinary medical, orthodontic, psychiatric, psychological, opthalmologic and eyeglass expenses for the minor children.”

The parties appeared on November 23, 2011 to argue their respective positions.   On January 20, 2011, the daughter had turned 19 and graduated from high school.   The son is over the age of 18 but will not graduate high school until June 2012.

FINDINGS OF FACT

1. The daughter reached the age of majority and graduated from high school on January 20, 2011 and was thereafter, no longer subject to the child support order.

2. The son is 18 but will not graduate high school until June 2012 and continues to be subject to the child support order.

3. Notwithstanding the court order that the father maintain medical insurance for the minor children, he allowed same to lapse and the mother has incurred medical expenses as a result thereof.

4. Upon the daughter's 18th birthday, the father, unilaterally, reduced his child support payments from $200 per week to $100 per week, which the mother accepted without objection.

5. At no time has the mother filed a motion for contempt attempting to force the father to maintain the medical insurance and/or pay the medical bills or to pay the correct amount of child support.

6. The son presently spends time at the homes of both of his parents and with his girlfriend with a rather undefined and loose schedule.

7. The father acknowledges that he wrongfully reduced his child support without a proper modification order but stands ready to pay the appropriate amount due.

8. The father presented two sets of child support guideline worksheets and financial affidavits based on his income in January 2010 in the net amount of $421 per week and his net amount presently in the amount of $664 per week for purposes of establishing what the child support order should have been at the time that the daughter reached the age of majority and what the child support orders should be today.

9. The mother's gross income is $670 per week and $436 per week net.

10. The court finds that the presumptive child support order, after the daughter reached the age of majority to be $131 per week from the father.

11. The court finds that the father's $200 per week child support obligation from January 1, 2009 until the present is 151 weeks at $200 or $30,200.

12. The court finds that he is entitled to a credit for $69 per week at 64 weeks or $4,416 based on the daughter having attained the age of majority.

13. The court finds that during the relevant period of time, the father made 19 payments of $866.66 or $16,559 for a further credit.

14. The court finds that there is an arrearage on child support through and including this date in the amount of $9,225 due to the mother.

15. While both parents claim that their weekly expenses presently exceed their weekly income, the court finds that the mother has submitted what can only be described as a “bare bones” financial affidavit for as the father's financial affidavit includes numerous items which could be characterized as “discretionary.”

16. The court finds that due to the shared parenting arrangement regarding their son, neither should pay or receive child support.

17. The court finds that due to the desires of both parties, there should be joint legal custody with primary residence in the father.

18. The court finds that there should be a three-year look back for the medical expenses incurred by the mother, which should have been covered by the father's maintaining medical insurance for the minor children.   The agreement and court order did not order the father to maintain medical insurance if available through his employment but, simply, ordered that he maintain medical insurance.   Moreover, agreement and order did not limit the expenses to exclude contact lenses and was careful to state “to include but are not limited to ․”

The court finds that the father is responsible for the following medical, dental and optical expenses:

a.  Dr. Gulino's bill dated April 6, 2011 in the amount of $140

b. L & M Hospital bill dated January 21, 2010 in the amount of $725

c. All bills identified for 2009 totaling $1369.67

d. Dr. Scott Keilty's bill dated June 14, 2010 in the amount of $71

e.  Dr. Shannon's bills, June 5, 2008 through September 17, 2008, totaling $628

f. Orthodontic Associates of Southeastern Connecticut, January 7, 2008 through February 5, 2010 totaling $4,331.

19. Therefore, the father owes to the mother 50% of $7,264.67 or $3,632.33.   When added to the child support arrearage of $9,225, the father owes to the mother the sum of $12,857.33.

ORDERS:

The parties shall enjoy joint legal custody of their minor child with primary residence in the father.   Given his age, the child shall be permitted to travel freely between the homes of his parents.

2. The mother shall be entitled to take the dependency tax exemption for Crystal and the father shall be entitled to take the dependency tax exemption for Kurtis for so long as they are so eligible.

3. Neither parent shall pay or receive child support due to the shared parenting arrangement.

4. The father shall pay to the mother the sum of $12,857.33 at the rate of $25 per week for unreimbursed medical, dental and orthodontic expenses and past due child support.

Shluger, J.

Shluger, Kenneth L., J.