Gary Symolon v. Cecilia Han (2013)

MEMORANDUM OF DECISION RE CHOICE OF LAW

FACTS

The plaintiff, Gary Symolon, and the defendant, Cecilia Han, intermarried in Connecticut in 1991.   Two children were born of this marriage:  Stephanie Symolon on October 31, 1992 and Stephen Symolon on August 12, 1995.   Both parties were present at the dissolution of their marriage on January 13, 1999 in Massachusetts.   They executed a separation agreement that was incorporated into their divorce judgment.   On the issue of child support, the plaintiff was to pay $210 per week for the two minor children to be “recalculated in accordance with the Child Support Guidelines then in effect on April 1, 1999, and every two years thereafter.”   Also included in the separation agreement was a provision covering college costs and expenses.

On February 5, 2013, the plaintiff filed the present action for modification of child support postjudgment.   Currently, the plaintiff resides in New Hampshire and the defendant with the children resides in Connecticut.   The plaintiff in his motion claims a substantial change in his circumstances has arisen because he is paying court ordered child support, one-half of his daughter's college expenses, and will have to pay the anticipated college expenses of his son, currently a senior in high school.   He moves the court “to modify his child support obligations to reflect his responsibility for college tuition, room, board and related expenses, and decrease his child support accordingly.”   Also, on February 5, 2013, the plaintiff filed with this court a certification of the parties' foreign matrimonial judgment pursuant to General Statutes § 46b–71(a).   On March 25, 2013, the plaintiff and defendant submitted updated financial affidavits.

DISCUSSION

The issue presented is which law applies to the plaintiff's motion for modification.   Whenever a party seeks to enforce in Connecticut a divorce judgment from another state, he or she must follow the procedures set forth in General Statutes § 46b–71.  Section 46b–71 provides:  “(a) Any party to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended, and such certificate shall set forth the full name and last-known address of the other party to such judgment and the name and address of the court in the foreign state which rendered such judgment. (b) Such 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, altering, amending, vacating, setting aside, staying or suspending said judgment as a judgment of a court of this state;  provided, in modifying, altering, amending, setting aside, vacating, staying or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.”

As indicated in the statute, once the foreign matrimonial judgment has been certified and filed, it becomes a judgment of the court of Connecticut where it is filed and is enforced and treated in the same manner as a judgment of a court of Connecticut as long as the judgment does not contravene the public policy of this state.   See Vitale v. Kriegeri, 47 Conn.App. 146, 148–49, 702 A.2d 148 (1997).   Consequently, in the present case, this court has subject matter jurisdiction of the certified Massachusetts matrimonial judgment filed by the plaintiff in the Waterbury Superior Court on February 5, 2013, as well as the motion he filed.

With respect to modifying a foreign judgment, § 46b–71 states that the substantive law of the foreign jurisdiction controls.  Vitale v. Kriegeri, supra, 47 Conn.App. 149.   In Vitale, the parties were divorced in Dallas, Texas in 1986.  Id., 147.  “Subsequent orders affecting support and visitation were made in Montgomery County, Maryland.”  Id. In 1993 and 1994, the parties filed several motions for modification in the Connecticut Superior Court which rendered judgment “concerning support, counsel for the minor child and counsel fees.   Thereafter, the parties filed motions for modification and contempt.”  Id. 147–48.   The trial court held extensive hearings and, on April 29, 1996, rendered its judgment.”  Id., 148.   The Appellate Court reversed the trial court because the trial court applied Connecticut law in deciding the motions.  Id., 149.   The court stated, that “when modifying a foreign matrimonial judgment, the courts of this state must apply the substantive law of the foreign jurisdiction, and failure to do so constitutes plain error.”  Id.

Additionally, in Colby v. Colby, 33 Conn.App. 417, 635 A.2d 1241 (1996), the trial court modified the alimony provisions of a Massachusetts divorce decree by applying Connecticut standards in the modification hearing.  Id., 418–19.   Reversing, the Appellate Court held that “when modifying a foreign matrimonial judgment, a Connecticut court must apply the substantive law of the foreign jurisdiction ․ In the present case, the trial court and both parties relied wholly upon the statutes and case law of the state of Connecticut.   The trial court's failure to apply Massachusetts law constitutes plain error ․ Where a statute dictates that the substantive law of a foreign jurisdiction is controlling and a trial court fails to apply such law, this comprises an extraordinary situation in which the error is so obvious as to affect the fairness and integrity of the judicial proceeding.   Moreover, the parties cannot agree that Connecticut law shall apply in direct contravention of the legislative intent that the substantive law of a foreign jurisdiction controls in modifying a foreign matrimonial judgment.”  (Citations omitted).  Id., 421–22.   Thus, on remand the trial court was instructed to apply the law of Massachusetts in determining whether the motion for modification should be granted.  Id., 422.

In the present case, at the time of the agreement, Exhibit E governed child support.   In relevant part, it provides in paragraph (1) “[T]he Husband shall pay to the wife the sum of $210 per week as child support pursuant to guidelines for the support of the parties' two minor children.   At such time as the Wife covers the children under her health insurance policy, the support shall increase by one-half of the cost of the insurance ․ (2) The Husband and Wife agree to split the clothing costs for both children equally ․ The costs shall not exceed $150 for each child for the fall wardrobe and $150 for each child for [the] summer wardrobe. (3) the amount of child support shall be recalculated in accordance with the Child Support Guidelines then in effect on April 1, 1999, and every two years thereafter since the current child support amount is based on the Wife having no income due to her job loss prior to the parties' separation.   If the parties are unable to calculate or to agree on the future support amounts, they shall seek the assistance of counsel and, if necessary, the [Massachusetts] Middlesex County Probate Court.  (4) The Husband shall be obligated to pay child support until the children become emancipated.   Emancipation of the children shall be deemed to have occurred upon the first of any of the following events to take place, whichever event shall first occur ․ Graduation from an accredited post-secondary school or college, or age 23, whichever occurs first.”   Exhibit G of the agreement addressed College Costs and Expenses.   Paragraph (1) provides “In the event a child attends a college or university, the costs of college education (for an undergraduate college education or comparable post-secondary vocational education up to four years) shall be paid as follow:  a. The first source of payment shall be the child's contribution, if any, from scholarships, loans, work study plans, savings and gifts. b. The second source shall be the parents who will contribute equally towards the cost of education.”

The plaintiff seeks a downward modification of child support on the ground of a substantial change in circumstances based on the additional payments he is making for secondary school and will be making for the second child this fall.   In modifying this foreign matrimonial judgment, this court must apply the substantive law of Massachusetts.   An additional question that may arise is whether the Massachusetts or Connecticut child support guidelines should apply in establishing a modified order.

“The courts in Connecticut are not as clear as to which state's support guidelines to apply.   In Evans v. Evans, 35 Conn.App. 246, 644 A.2d 1317 (1994), the court held that the controlling substantive law was the New York law of domestic relations to modify child support payments of a New York judgment.   While the decision did not address specifically which state's guidelines to follow, the court found no abuse of discretion by the trial court in applying the New York child support guidelines in the case.  Id., 250–51.   The question arises as to whether the child support guidelines are substantive or procedural in nature.  ‘Child support and arrearage guidelines' means the rules, principles, schedule, and worksheets established ․ for the determination of an appropriate child support award, to be used when initially establishing or modifying both temporary and permanent orders.’   Child Support and Arrearage Guideline Regulations, § 46b–215a–1(5).   The court finds that the child support guidelines are substantive in nature and therefore the [foreign jurisdiction] [g]uidelines are to be followed in determining the current child support amount.”   Bonthu v. Bonthu, Superior Court, judicial district of New London at Norwich, Docket No. FA 06 4104170 (April 4, 2007, Sweinton, J.) (43 Conn.L. Rptr. 230, 232).

CONCLUSION

The court finds that the substantive law of Massachusetts applies to the plaintiff's postjudgment motion to modify.   Further, the court finds that child support guidelines are substantive in nature, and thus the Massachusetts child support guidelines apply to the subject motion to modify child support.

SO ORDERED

BOZZUTO, J.

Bozzuto, Elizabeth A., J.