Matthew Brown v. Nancy Brown (2013)

MEMORANDUM OF DECISION RE MOTION TO MODIFY CHILD SUPPORT

The court, Olear, J., dissolved the marriage of the parties after a lengthy trial on January 6, 2012.   The judgment included orders for the support of two minor children, one of whom turned eighteen on July 11, 2012.

On May 30, 2012, plaintiff's counsel filed a pleading entitled “Post Judgment Motion to Modify Judgment upon Majority of One Child” (# 199.10).¹

The plaintiff's motion seeks a recalculation of child support asserting a substantial change of circumstances in that the elder of the parties' two children reached his majority on July 11, 2012 and had completed high school by that time.

FACTUAL FINDINGS AND DISCUSSION OF APPLICABLE LAW

All facts are found by a preponderance of the evidence after careful review of the testimony and exhibits presented.   The court assessed and weighed the credibility of all witnesses who appeared before it.

In a modification only those circumstances that arose subsequent to the last orders can be considered.  Borkowski v. Borkowski, 228 Conn. 729 (1994).

The original decree or any subsequent order is an adjudication by the trial court as to what is right and proper at the time it is entered.   To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it.   Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order.   In making such an inquiry, the trial court's discretion is essential.   The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided;  H. Clark, Law of Domestic Relations (1968) 14.9, p. 456;  or to allow the parties to use a motion to modify as an appeal.   See Hein v. Hein, 127 Conn. 503, 507, 18 A.2d 374 (1941).   Rather, the trial court's discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.

Therefore, although the trial court may consider the same criteria used to determine the initial award “without limitation”;  Hardisty v. Hardisty, 183 Conn. 253, 259–60 (1981);  in doing so, its inquiry is necessarily confined to a comparison between the current Conditions and the last court order.   To permit the trial court to reconsider all evidence dating from before the original divorce proceedings, in determining the [modification], would be, in effect, to undermine the policy behind the well established rule of limiting proof of the substantial change of circumstances to events occurring subsequent to the latest ․ order—the avoidance of relitigating matters already settled.   H. Clark, supra, 14.9, @ 456.   Applicable to dissolution actions, as well as to other kinds of litigation, is the principle that an adjudication by a court having jurisdiction of the subject matter and the parties is final and conclusive not only as to matters actually determined, but as to matters which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject matter of the action.  Id. This policy of avoiding duplicitous litigation is particularly important in the context of family law ․ A court, having performed its function of ruling upon a controversy, cannot be taken over by the litigants for the continued readjudication and reconsideration of their affairs.   To allow otherwise would waste time and leave an undesirable uncertainty in the economic affairs of the parties.

Id., pp. 737–38.

Therefore, in this case for all the reasons stated in the seminal Borkowski decision, only changes in circumstances that occurred after the date of the judgment—January 6, 2012—are relevant.   The court has not and will not reconsider the Judgment.   It set child support for two minor children.   The elder turned eighteen on July 11, 2012.   He had completed high school by that time.  C.G.S. Section 46b–84(b).  This event is found to be a substantial change in circumstances that occurred after the date of the judgment, so the court will undertake a recalculation of plaintiff's child support obligation guided by our Supreme Court's interpretation of Maturo v. Maturo, 296 Conn. 80 (2010), Misthopoulos v. Misthopoulos, 297 Conn. 358 (2010), and their more recent progeny in Dowling v. Szymczak, 309 Conn. 390 (2013).

Dowling settles any lingering questions that arose from earlier decisions involving a calculation of child support when the net family income exceeds the upper limits of the Current Child Support Guidelines.   Justice McDonald favorably reviews the work of Family Support Magistrate Richard G. Adams and Superior Court Judge John D. Boland.

Magistrate Adams “rejected defendant's argument that the mathematical formula for the decreasing percentage of income principle reflected in the schedule should simply be extended to combined net weekly incomes of more than $4000 ․” Id. @ 396.   He further reasoned “that ‘[t]wo explicit rules fall from the Maturo analysis:  the court's award of a child support order, in the absence of a deviation, cannot fall below the dollar amount of the order indicated at the top of the table for the noncustodial parent in the schedule of basic obligations, nor exceed the percentage of combined net income at that level.’  “ Id. The Magistrate concluded that the court “retained discretion—albeit not unfettered—to set the award in light of both the particular circumstances of each case and the general fact that children in high income families are accustomed to an affluent lifestyle that should be maintained to the extent reasonably possible.”  Id.

Judge Boland's carefully reasoned opinion affirmed that of Magistrate Adams.   “Unless deviation findings are made, [the magistrate or trial court's] discretion is normally confined to a range between a presumed minimum ($473, if one child) and a presumed maximum (11.83 percent of the net income available to the parents), which are the dollar and percentage expressions of presumed support for families netting $4,000 per week.”   Within that range, the magistrate or trial court “possesses the discretion to locate that exact number by a case-by-case examination of the [factors] listed in General Statutes § 46b–84 (d).”  Id. @ 398.

After reviewing and approving the Guidelines calculation methodology of Maturo, Misthopoulos and Tuckman v. Tuckman, 308 Conn. 194 (2013), Justice McDonald, writing for a unanimous court, held that “child support payments ․ should presumptively not exceed the [maximum] percent [set forth in the schedule] when the combined net weekly income of the family exceeds $4,000, and, in most cases, should reflect less than that amount.   See Maturo v. Maturo, supra, [296 Conn.] 96.”  (Emphasis added.)  Misthopoulos v. Misthopoulos, supra, 369.   Either the presumptive ceiling of income percentage or presumptive floor of dollar amount on any given child support obligation, however, may be rebutted by application of the deviation criteria enumerated in the guidelines and by the statutory factors set forth in § 46b–84(d).  See Maturo v. Maturo, supra, 296 Conn. 106.[A]s long as the child support award is derived from a total support obligation within this range—between the presumptive minimum dollar amount and the presumptive maximum percentage of net income—a finding in support of a deviation is not necessary.  Dowling, supra, pp. 401–02.  “[T]he uppermost multiplier will provide the presumptive ceiling that will guide the trial courts in determining an appropriate child support award ‘on a case-by-case basis';  Regs., Conn. State Agencies § 46b–215a–2b(a)(2);  without the need to resort to deviation criteria.   We underscore, however, that, in exercising discretion in any given case, the magistrate or trial court should consider evidence submitted by the parties regarding actual past and projected child support expenditures to determine the appropriate award, with due regard for the principle that such expenditures generally decline as income rises.”  Id., pp. 402–03.

The Supreme Court specifically rejected that Magistrate Adams failed to base the child support order on the needs of the child.   They approved his reasonable inferences as to the station of the child based on the parents' established income levels and education.  Id., pp. 406–07.

Calculation of Child Support

The court now applies Justice McDonald's methodology in the instant case.

In the dissolution judgment, Judge Olear determined that defendant would have no earning capacity for a period of years past the date of the judgment.   Neither plaintiff nor defendant offered any credible evidence as to any change in her earning capacity, so the court's calculations attribute no income to her.   The court acknowledges—and dismisses—plaintiff's claim that his payment of alimony should be considered income to the defendant in the calculation of child support.   This is clearly not the law.   See, Regs., Conn. State Agencies Section 46b–215a–1(11);  (17) and the preamble.   Plaintiff's earnings, therefore, constitute one hundred percent of the family's theoretical “combined net weekly income” (line 15 of the Child Support Guidelines Worksheet).

Allowable deductions from gross income

Plaintiff's current sworn Financial Affidavit dated April 1, 2013 shows a weekly gross income of $8,076.00.   The court credits this evidence.   To arrive at his net weekly income, all “allowable deductions” are subtracted.   Regs., Section 46b–215a–1(1)(A–J).

Plaintiff claims a current deduction for federal withholding of $1,384.61 on his Financial Affidavit.   However, he seeks a modification of child support dating back to his elder son's birthday on July 11, 2012.²  The court deems that Plaintiff's 2012 federal and state income tax return is a better measure of his allowable federal and state tax withholding going back to 2012.   See, Defendant's Exhibit B. Plaintiff had $73,976.00 withheld from his pay in 2012.   He received a refund of $8,857.00, so he actually owed $65,119.00. ($73,976.00 minus $8,857.00 = $65,119.00.)   Dividing this amount by fifty-two weeks yields weekly withholding of $1,252.00.   The court finds that this is the extent of the allowable deduction.

The parties agree that plaintiff's weekly social security deduction is $491.00.  (Defendant's number was $495.00.)

The court adopts defendant's number for Medicare tax withholding, $116.00 per week, because plaintiff appears to have inadvertently used a two-week number, $231.00, from his bi-weekly paycheck.  (Total 2012 Medicare withholding was $6,022.49.   Dividing this by fifty-two weeks yields $115.82.)   See, Plaintiff's Exhibit 16 and Defendant's Exhibit E.

Plaintiff had $25,368.00 withheld for state tax purposes.   He received a refund of $7,093.00.   His actual tax that year was therefore, $18,275.00.   Dividing this number by fifty-two weeks yields an average of $351.44.   His allowable deduction for state taxes is found to be $351.00.   See, Defendant's Exhibit B.

Plaintiff's Financial Affidavit lists a deduction of $75.50 for medical insurance.   However, his footnote indicates that this is a “Medical Savings Account, used to pay children's medical and dental expenses.”   The Guidelines allow a deduction for health insurance premiums.   Regs. Section 46b–215a–1(1)(D).  The $5.00 he pays for dental insurance is allowed.

The dissolution court also ordered him to pay for life insurance, but not disability insurance.   The court therefore allows $26.25 per week, rounded to $26.00, for life insurance, but nothing for disability insurance.  Id., subsection (E).

The sum of these allowable deductions is $2,241.00.   This amount taken from his gross weekly pay is $5,835.00 ($8,076.00 minus $2,241.00 = $5,835.00).   This is plaintiff's net weekly pay after credit is given for all allowable deductions.

Calculation of Presumptive Minimum and Maximum Child Support

The Guidelines currently end at the combined net weekly income of $4,000.00, and the last noted percentage of support for one child is 11.83%. Therefore the minimum presumptive amount of weekly child support for the parties' remaining minor child is $473.00.   Plaintiff currently earns all of the parties' combined net weekly income.   He makes $1,835.00 over the maximum figure.   As Maturo instructs and Dowling confirms, trial courts multiply the amount over $4,000.00 by 11.83% to calculate the maximum presumptive amount of child support;  here $217.08 ($1,835.00 times .1183 = $217.08).   The maximum amount of presumptive support is the sum of the minimum and the “overage”:  $690.08 ($473.00 plus $217.08 = $690.08).

The trial court may select in its discretion any number within the minimum and maximum presumptive amounts and still be within the Guidelines.   No deviation is required unless the court is persuaded that the presumptive amounts are unfair or inequitable under one or more specific Guidelines deviation criteria.  Dowling, supra, @ 402.   This gives the court a wide range within which to set the child support before considering any deviation criteria—between $473.00 and $690.00.

Needs of the Child and Applicable Criteria

The court's authority to make or modify a child support order is derived from C.G.S. Section 46b–84.   This statute states in part that parents shall maintain their child “according to their respective abilities, if the child is in need of maintenance.”   Subsection (d) goes on to guide the court:  “[i]n determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.”

It is in this context that courts assess the needs of the child.   The “trial court should consider evidence submitted by the parties regarding actual past and projected child support expenditures to determine the appropriate award, with due regard for the principle that such expenditures generally decline as income rises.”  Id. @ 403.

The credible evidence in this case is clear.   The minor child is currently fourteen.   He depends on his parents for maintenance and support.   His parents are highly educated.   Plaintiff is a transplant surgeon who earns in excess of $400,000.00 a year.   He recently spent some $40,000.00 for renovations to his kitchen, and the work is ongoing.   Plaintiff has paid down his student debt by about $27,000.00 in the past 15 months according to a comparison of his recent Financial Affidavits.   His attorneys fees since the date of the divorce are at least $25,000.00.   He has traveled to Canada four times since then and made two trips to Florida.   Defendant is completing a nursing degree.   The son lived in a desirable, upscale neighborhood and attended good schools.   His activities include scuba diving, skiing, swimming with dolphins in Florida with his father and major league baseball excursions.   Certainly there is a reasonable limit to what any child “needs,” but the applicable statute mandates that the court consider a child's “station.”   Perhaps no child needs “two ponies” as Plaintiff asserts in his brief.   If, however, wealthy parents established an affluent, even opulent lifestyle for their children during their marriage, the court must take this standard of living into account when fashioning its support orders—even if the family is no longer intact.

Based on these facts and as Magistrate Adams inferred in Dowling, this boy “will probably travel more than the average child, [and] he will have opportunities to pursue activities and interests beyond the means of most children ․ [He] will likely have every advantage he can use from apparel to gifts to hobbies and sports.”  Dowling, supra @ 406.   By any objective measure, the court reasonably infers that he is privileged to live an affluent life formerly and currently provided by his father's talents, skills and experience.

Deviation from the Guidelines

Plaintiff seeks a downward deviation from the minimum presumptive amount of the Guidelines Child Support on the basis of alimony paid to defendant and his travel expenses to maintain his relationship with his son.

The provision of alimony is one aspect of the coordination of total family support as a basis for deviation from the Guidelines.   Regs. State Agencies, Section 46b–215a–3(b)(5)(B).  However, the court may only apply this criterion “[w]hen such considerations will not result in a lesser economic benefit to the child.”   Reducing the child support in this case because the mother receives alimony cannot help but “result in a lesser economic benefit” to the child because defendant currently has no earnings.   Every dollar less the mother receives reduces her ability to provide for the child;  this reduces the economic benefit to the child when in her household.   Furthermore, if the court deviated on this basis, the effect would be to undermine the alimony award made by the dissolution court.

Plaintiff also seeks to deviate downward on the basis of his travel expenses to visit his son in Canada where mother now resides.   He claims to have spent $9,500.00 visiting his son in Canada and another $3,775.00 for the boy to visit him in the United States.   He asserts that these expenses greatly exceed the amount allowed by Judge Olear when she set child support in the dissolution judgment.³

Section 46b–215a–3(b)(3) of the Regulations of Connecticut State Agencies provides in relevant part:  “In some cases, a parent may incur extraordinary expenses that are ․ necessary for the parent to maintain a satisfactory parental relationship with the child ․ Only the following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts under this subdivision:  (A) significant visitation expenses ․” (Emphasis added.)   Kavanah v. Kavanah, 142 Conn.App. 775, 781 (2013).

The court does not doubt the current high cost of airfare, hotels and meals when traveling.   Plaintiff, however, admitted that his employer reimbursed some of his expenses for a recent trip to Florida.   He includes all costs of his time with his son in his “travel” expenses, like swimming with the dolphins, scuba diving, major league baseball tickets and other entertainment.   Entertainment is not a travel expense.   This testimony undercuts his credibility and claims of extraordinary travel expenses.  Id.

For these reasons, the court declines to deviate from the Guidelines and will focus instead on the needs and station of the minor child guided by the applicable criteria of Section 46b–84(d).  This will suffice to address plaintiff's financial assertions.

ORDERS

For all of the above-stated reasons, the court orders plaintiff to pay defendant $525.00 weekly child support for their remaining minor child.

This order shall commence the week of July 11, 2012.

Any adjustment for over or under-payment of child support resulting from this order shall be calculated by the parties with the assistance of their counsel.   If they agree on an amount and method of reimbursement, they shall submit a stipulation to the court for adoption as a court order.   If they cannot agree within thirty (30) days of the date of this order, then either may file an appropriate motion with the court.

SO ORDERED.

BY THE COURT,

Carbonneau, J.

FOOTNOTES

FN1. The statutory basis for such modification in relevant part is C.G.S. Section 46b–86:  MODIFICATION OF ALIMONY OR SUPPORT ORDERS AND JUDGMENTS. (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b–215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.   There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen percent or more from the guidelines is substantial.   No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52–50..  FN1. The statutory basis for such modification in relevant part is C.G.S. Section 46b–86:  MODIFICATION OF ALIMONY OR SUPPORT ORDERS AND JUDGMENTS. (a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b–215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.   There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen percent or more from the guidelines is substantial.   No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52–50.

FN2. Plaintiff's Motion to Modify anticipated his son's eighteenth birthday and was served well prior to that date so the modification may date back to the date of the birthday without being a retroactive modification.  C.G.S. Section 46b–86(a)..  FN2. Plaintiff's Motion to Modify anticipated his son's eighteenth birthday and was served well prior to that date so the modification may date back to the date of the birthday without being a retroactive modification.  C.G.S. Section 46b–86(a).

FN3. Judge Olear did not have the benefit of the Dowling decision when she crafted her support orders for the parties' two minor children.   She reasoned in this high-income case that there could be only one “presumptive amount” of child support—mirroring the single presumptive amount found in the Guidelines tables for combined weekly family income of $4,000 or less.   She “deviated” from the maximum presumptive amount of $801 down to what would have been, under Dowling, the minimum presumptive amount of $636 to offset what she determined were plaintiff's significant travel expenses.   Regs. State Agencies, Section 46b–215a–3(b)(3)(B).  Dowling makes clear that the selection of a child support number at or between the presumptive minimum and maximum is within the Guidelines and not a deviation at all..  FN3. Judge Olear did not have the benefit of the Dowling decision when she crafted her support orders for the parties' two minor children.   She reasoned in this high-income case that there could be only one “presumptive amount” of child support—mirroring the single presumptive amount found in the Guidelines tables for combined weekly family income of $4,000 or less.   She “deviated” from the maximum presumptive amount of $801 down to what would have been, under Dowling, the minimum presumptive amount of $636 to offset what she determined were plaintiff's significant travel expenses.   Regs. State Agencies, Section 46b–215a–3(b)(3)(B).  Dowling makes clear that the selection of a child support number at or between the presumptive minimum and maximum is within the Guidelines and not a deviation at all.

Carbonneau, John L., J.