Melissa Faneuff v. William Faneuff (2012)

MEMORANDUM OF DECISION

FACTS

The above-captioned parties were divorced in the Commonwealth of Massachusetts on June 13, 2007.   The parties have one child of the marriage, Madison C. Faneuff, age 5.

Pursuant to the 2007 judgment “The Husband and Wife shall have joint legal custody of their minor child, with physical custody to the Wife ․”

On March 25, 2010 the defendant father filed a complaint for modification of custody seeking joint 50/50 physical custody of the minor child.

The original Massachusetts divorce decree provided that the parties would have joint custody of the child, with physical custody to the wife.   The decree further provided that the wife had the right to relocate the child to Connecticut within a 25–mile radius of Hampden, MA. The plaintiff mother and minor child relocated to Connecticut shortly after the entry of judgment in Massachusetts.

The Massachusetts court dismissed defendant father's complaint for modification of custody on May 19, 2010 for lack of subject matter jurisdiction.   This court notes that the only matter pending before the court on May 19, 2010 was custody.   Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, Conn. Gen.Stat. § 46b–115, Connecticut had become the “home state” of the child by residing in Connecticut six consecutive months immediately before the commencement of a child custody proceeding, § 46b–115a(7).

The defendant father remains a Massachusetts resident.

On January 5, 2010 the defendant filed a motion for modification in this court seeking a shared parenting plan.   On September 29, 2011 the defendant father filed a motion to modify child support.

On October 12, 2011 after a hearing, this court adopted the parenting plan proposed by Family Relations and in addition gave the parties the right of first refusal and ordered communication by OurFamilyWizard.com website.   The modified parenting plan is as follows:

Week One:  Father will have parenting time on Monday from after school overnight until Wednesday drop off at school/bus stop.

Mother will have parenting time Wednesday from after school overnight until Friday drop off at school/bus stop.

Week Two:  Mother will have parenting time on Monday from after school overnight until Wednesday drop off at school/bus stop.

Father will have parenting time on Wednesday from after school overnight until Friday drop off at school/bus stop.

The parents agree to alternate the weekends from Friday after school overnight until Monday morning drop off at school/bus stop.   In the event that the minor child does not have school the parent is responsible for the minor child until the 3:00 p.m. transition time.

The court ordered plaintiff and defendant to provide the court with Child Support Guidelines from both Massachusetts and Connecticut, Massachusetts law on deviation from Child Support Guidelines and briefs on the applicable law within two weeks.   Defendant father's brief was filed on October 31, 2011 and plaintiff mother's brief was filed on November 4, 2011.

The plaintiff's earnings totaled $36,000 at the time of divorce and $42,000 in 2008 when she terminated employment to be a stay-at-home mother to her three young children (two children from a subsequent relationship).

DISCUSSION

General Statutes § 46b–70 provides in relevant part:  “[F]oreign matrimonial judgment means any judgment, decree, or order of a court of any state in the United States in an action for divorce, legal separation, annulment or dissolution of marriage, for the custody, care, education, visitation, maintenance or support of children or for alimony, support or the disposition of property of the parties to an existing or terminated marriage, in which both parties have entered an appearance.”  (Internal quotation marks omitted.)  General Statutes § 46b–71(b) provides in relevant part that a foreign matrimonial judgment “shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state;  provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut.   A foreign matrimonial judgment so filed shall have the same effect and may be enforced or satisfied in the same manner as any like judgment of a court of this state and is subject to the same procedures for modifying ․ as a judgment of a court of this state;  provided, in modifying, altering, amending ․ any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.”  (Emphasis added.)

General Statutes § 46b–213r(b)(1) provides that “[i]f a foreign country or political subdivision that is a state will not or may not modify its order pursuant to its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child support order otherwise required of the individual pursuant to subsection (a) of section 46b–213q has been given or whether the individual seeking modification is a resident of this state or of the foreign country or political subdivision.”

The Appellate Court held in Colby v. Colby that the trial court's failure to apply Massachusetts law when modifying the matrimonial judgment rendered by a Massachusetts court constituted a plain error.  Colby v. Colby, 33 Conn.App. 417, 635 A.2d 1241 (1994).   In that case, the parties were divorced in Massachusetts.   The plaintiff certified the judgment and filed it in the Superior Court in Connecticut in order to enforce it against the defendant, who had relocated to Connecticut.   Then, the defendant sought to modify the alimony order.   The Appellate Court held that as the alimony order is a matrimonial judgment according to the definition provided in section 46b–70, section 46b–71(b) “consigns to the courts of this state the power to enforce, satisfy, modify, alter ․ a foreign matrimonial judgment that has been properly filed in a Connecticut court.”  (Internal quotation marks omitted.)  Id., 420.   In Colby, the Appellate Court held that because it was unable to determine from the record if the plaintiff had filed an appearance for the divorce proceeding in Massachusetts, the “threshold requirement for enforcement of the foreign matrimonial judgment not having been satisfied leaves unresolved the question of the jurisdiction of the trial court.”  Id., 421.   Nevertheless, because “[c]learly, when modifying a foreign matrimonial judgment, a Connecticut court must apply the substantive law of the foreign jurisdiction” the trial court committed plain error.  Id.

Similarly, the Appellate Court applied the New York Domestic Relations Law when it held that the plaintiff had failed to meet his burden of demonstrating an extreme hardship that would warrant the modification of his obligations set forth in the New York divorce decree.  Reichert v. Bronson, 113 Conn.App. 757, 968 A.2d 434 (2009).   Also in Vitale v. Krieger, the Appellate Court held that because the record contained certified copies of the foreign decree issued in Texas as required by section 46b–71(a), the trial court properly had jurisdiction to enforce or modify the foreign matrimonial judgment but committed plain error when it failed to apply the substantive law of Texas.   Vitale v. Krieger, 47 Conn.App. 146, 702 A.2d 148 (1997);  see also Scott v. Scott, Superior Court, Judicial District of Stamford–Norwalk at Stamford, Docket No. FST FA 03 0194177S (May 4, 2011) (the court considered the New Jersey Child Support Guidelines with regard to the motion to modify child support).

In the present case, it is undisputed that the defendant's motion to modify child support has been filed properly after the Massachusetts divorce decree has been filed in the state of Connecticut pursuant to General Statutes § 46b–71.   Also, nothing in the record before the court demonstrates that the threshold requirements set forth in § 46b–71(a) have not been satisfied.¹  The court finds that the divorce decree, which includes the child support that the defendant seeks to modify, is a foreign matrimonial judgment that may be modified by the court, provided the substantive law of Massachusetts is controlling, pursuant to section 46b–71(b).  In light of case law provided above, applying the Massachusetts law would be in line with the Connecticut appellate authority.

Additionally, the plaintiff relies on the following language of the Preamble of the Massachusetts Child Support Guidelines:  “existing orders and judgments less than three years old as of the effective date of these guidelines shall not be modified unless the income of one or both parties has changed or other new circumstances warrant modification.”   The guidelines have become effective as of January 1, 2009 and are to be applied to all child support orders and judgments entered thereafter.   Although the Massachusetts divorce decree in the present case was rendered in 2007, because the defendant's income has changed, and the court has modified the parenting plan, which may warrant modification, the defendant's modification of child support is not precluded.

The defendant, father earns gross income of $1,992 per week as an assistant warden of a Connecticut prison plus additional gross income of $200 per week at a tavern.

The plaintiff, mother has a total of five children, two born before the subject child and two born after this divorce.   The defendant, father is supporting two children born subsequent to his divorce from plaintiff.

CONTROLLING LAW

The court was provided with Massachusetts Child Support Guideline worksheets and the Commonwealth of Massachusetts Child Support Guidelines dated January 1, 2009.

The court notes that the Massachusetts Guidelines include overtime income in the definition of income and states in the Preamble I.B, Overtime and Secondary Jobs as follows:

If the court disregards income in whole or in part, from overtime or a secondary job, due consideration must first be given to certain factors including but not limited to the history of the income, the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime on the parenting plan, and whether the extra work is a requirement of the job.   If, after a child support order is entered, a payor or recipient obtains a secondary job or beings to work overtime, neither of which was worked prior to the entry of the order, there shall be a presumption that the secondary job or overtime income should not be considered in a future support order.

The parties' parenting plan has been modified to an essentially shared 50/50 agreement.   The Massachusetts Guidelines Preamble provides for deviations from the Guidelines based on shared parenting as follows:

D. Parenting Time

These guidelines recognize that children should enjoy parenting time with both parents to the greatest extent possible consistent with the children's best interests.

These guidelines are based upon the child(ren) having a primary residence with one parent and spending approximately one-third of the time with the other parent.

Where two parents share equally, or approximately equally, the financial responsibility and parenting time for the child(ren), the child support shall be determined by calculating the child support guidelines twice, first with one parent as the Recipient, and second with the other parents as the Recipient.   The difference in the calculations shall be paid to the parent with the lower weekly support amount.

The plaintiff had been employed full-time up the birth of her most recent child.   Ms. Faneuff is currently a stay-at-home mother.   It is undisputed that she earned $42,000 in 2008, the last year she was employed full-time.

The Preamble to the Massachusetts Child Support Guidelines contains the following provision regarding earning capacity:

H. Attribution of Income

Attribution of income is intended to be applied where a finding has been made that either party is capable of working and is unemployed or underemployed.   The Court shall consider all relevant factors including without limitation the education, training, health and past employment history of the party, and the age, number, needs and care of the children covered by this order.   If the Court makes a determination that either party is earning less than he or she could through reasonable effort, the Court shall consider potential earning capacity rather than actual earnings in making its order.

In computing the child support in this case the court finds that mother has an earning capacity of $42,000.   Mother was aware of her obligation to support the subject child when she and her current husband decided to have additional children.   The court finds it would be unjust to penalize the defendant as a result of lifestyle choices made by the plaintiff post-judgment.

The Massachusetts Child Support Preamble also makes provisions for other orders and obligations as follows:

I. Other Orders and Obligations

When an initial order is sought for a child covered by this order, the following amounts actually paid to support a former spouse or a child not covered by this order shall be deducted from gross income for purposes of calculating the child support amount under this order:

1) the amount of prior orders for spousal and child support;  or

2) voluntary payments to support a child with whom the Payor does not reside, to the extent the amounts are reasonable;  or

3) a hypothetical amount of child support for a child with whom the Payor resides but for whom no child support order exists, which hypothetical child support amount shall be calculated according to the Guidelines Worksheet using the gross incomes of both parents of the child.

The party seeking to take such deductions from gross income must have a legal obligation or duty to support the former spouse or child and must provide evidence that such support or voluntary payments are actually being paid.

To the extent that prior orders for spousal and child support are actually being paid, the Court should deduct those payments from the party's gross income before applying the formula to determine the child support order.   Voluntary payments for other children a party has a legal obligation to support may be deducted in whole or in part to the extent the amounts are reasonable.   It is the party's obligation to provide evidence of the existence and payment of prior orders or voluntary payments.

Obligations to a subsequent family may be used as a defense to a request to modify an order seeking an increase in the existing order but such obligations should not be considered a reason to decrease existing orders.

The following provisions of the Massachusetts Child Support Guidelines have been considered by this court:

III. MODIFICATION

A. A child support order may be modified if any of the following circumstances exist:

1) the existing order is at least three years old;  or

2) health insurance previously available at reasonable cost is no longer available (or if available but not at reasonable cost);  or

3) health insurance not previously available to a party at reasonable cost has become available;  or

4) any other material change in circumstances has occurred.

B. Upon a request for modification of an order that deviated from the guidelines at the time it was entered, the guidelines shall apply unless:

1) the facts that gave rise to deviation still exist;  and

2) deviation continues to be in the child's best interest;  and

3) the guidelines amount would be unjust or inappropriate under the circumstances.

Paragraph B above does not preclude deviations based on other grounds set forth in Section IV or grounds for modification as set forth in Paragraph A above.

IV. DEVIATIONS

The Court, or the parties by agreement approved by the Court, may deviate from the guidelines and overcome the presumptive application of the guidelines provided the Court enters specific written findings stating:

1) the amount of the order that would result from application of the guidelines;

2) that the guidelines amount would be unjust or inappropriate under the circumstances

3) the specific facts of the case which justify departure from the guidelines;  and

4) that such departure is consistent with the best interests of the child.

Circumstances which may support deviation include, but are not limited to, the following:

1) the parties agree and the Court approves their agreement;

2) a child has special needs or aptitudes;

3) a child has extraordinary medical or other expenses;

4) application of the guidelines, particularly in low income cases, leaves a party without the ability to self support;

5) Payor is incarcerated, is likely to remain incarcerated for an additional 3 years and has insufficient financial resources to pay support;

6) application of the guidelines would result in a gross disparity in the standard of living between the two households such that one household is left with an unreasonably low percentage of the combined available income;

7) a parent has extraordinary medical expenses;

8) a parent has extraordinary travel or other expenses related to parenting;

9) application of the guidelines may adversely impact re-unification of a parent and child where the child has been temporarily removed from the household based upon allegations of neglect;  or

10) absent deviation, application of the guidelines would lead to an order that is unjust, inappropriate or not in the best interests of the child, considering the Principles of these guidelines.

The original decree from Massachusetts establishing child support is dated February 22, 2007, more than three years after the original Massachusetts judgment established child support of $270 per week.

Counsel have each submitted Child Support Guidelines for Massachusetts and Connecticut including Guidelines with the plaintiff at zero income and at her last salary of $42,000.

The court finds that plaintiff has an earning capacity of $42,000.   The court utilized the Massachusetts Guidelines prepared by defendant's counsel with defendant's earning capacity of $821.00 per week to determine child support.   If plaintiff were to pay child support to defendant she would pay $140.00 per week;  if defendant were to pay child support to plaintiff he would pay $425.00 per week.   Pursuant to the Massachusetts Child Support Preamble child support should be the difference between the two figures or $285.00 per week, pursuant to the Massachusetts Child Support Guidelines.

This court was not provided by either of the parties with any information regarding the defendant's hypothetical payment of child support for the two children born subsequent to this action.   The Preamble to the Massachusetts Guidelines provides in Section I(3) a deduction for a hypothetical amount of child support for a child with whom father resides but for whom no child support order exists.   The hypothetical child support is to be calculated using the Guidelines Worksheet using gross income for both parents of the hypothetical child.   The court was provided with no information regarding the gross income of father's current wife.   As a result this court has been unable to take the hypothetical payment into consideration in establishing this order.

BY THE COURT

Holly Abery–Wetstone, PJ

FOOTNOTES

FN1. Furthermore, because the Massachusetts court has denied the defendant's motion to modify custody on the ground of lack of subject matter jurisdiction, pursuant to section 46b–213r(b)(1), the court has jurisdiction to modify the child support order and bind all individuals subject to personal jurisdiction..  FN1. Furthermore, because the Massachusetts court has denied the defendant's motion to modify custody on the ground of lack of subject matter jurisdiction, pursuant to section 46b–213r(b)(1), the court has jurisdiction to modify the child support order and bind all individuals subject to personal jurisdiction.

Abery–Wetstone, Holly, J.