Heather Bushnell v. Brett Bushnell (2013)

MEMORANDUM OF DECISION RE MOTION TO MODIFY CHILD SUPPORT (# 112)

FINDINGS

The current child support obligation of the defendant father is $1,800 per month, as set forth in the agreement between the parties dated July 27, 2010, and incorporated into the parties' dissolution judgment on October 12, 2010.   Section 2.1 of the agreement states that the child support amount “may exceed the guidelines based on Husband's current base salary but does not take into consideration Husband's bonus income which the parties agree was not considered in the child support calculation, but took into consideration the total family support.”   The defendant has consistently received substantial bonus income in addition to his base salary from his accounting firm, in which he is a partner, from the time of judgment to the present.

However, at the time of judgment a child support guidelines worksheet—apparently prepared some months after the agreement on child support was signed—was submitted to the court.   The worksheet indicated a presumptive support obligation of $415 per week, which essentially translates to the $1,800 monthly amount agreed to by the parties and ordered by the court.   Consistent with the agreement, the father's income as set forth on the worksheet did not include his bonus income.   The proposed child support payment was presented to the court as being in accordance with the Child Support Guidelines, with no deviation from the guidelines requested or found by the court.

The plaintiff mother now seeks a modification of child support based on the current incomes of the parties.   The parties have each submitted current financial affidavits and child support guidelines worksheets.   Each worksheet appears now to include bonus compensation (and interest income) in the gross income of the father, although their computations differ.   The father's worksheet states his gross weekly income to be $5,054, while the mother's worksheet states it to be $5,736.   Both worksheets state the same weekly gross income of $1,294 for the mother, which the court accepts as accurate notwithstanding the mother's stipulation that her financial affidavit inadvertently omitted a de minimis amount of summer tutoring income.

The other significant difference between the two worksheets is the notation at the bottom of the father's, purporting to make an adjustment for “shared custody.”   In the notation, the father computes his weekly support obligation as the difference between his ($482) and the mother's ($147) presumptive amounts.   By his calculation, this yields his weekly support obligation of $335.   The mother's worksheet makes no such adjustment and calculates a weekly support obligation for the father of $504, based on the minimum presumptive amount where combined net weekly income exceeds $4,000.

The court finds the father's worksheet gross income figure of $5,054 to be correct.   It appears that the mother's worksheet projects the father's annual 2013 income based on the year-to-date earnings shown on his paystub for September 30, 2013 (Plaintiff's Exhibit 2).   However, that paystub included bonus income of $68,163.11 which the defendant explained was an annual bonus determined at the end of 2012 and paid in early 2013—not a recurring weekly amount that would continue through the rest of the year.   The court finds that the father's financial affidavit accurately states the weekly amount of the bonus to be $1,311, and finds his worksheet's weekly gross income figure to be accurate.   The court further notes that the father's reported weekly average income of $5,054 equates to annual income of $262,808, very close to his actual 2012 calendar year earnings of $261,675.04 as shown on his W–2 form (Plaintiff's Exhibit 1).

CONCLUSIONS

Having determined the correct income figures, the court turns to the issue of whether it is appropriate to consider the bonus now in determining child support, when by the parties' agreement it was not considered at the time of judgment.   Plaintiff urges the modification of support based on the inclusion of the bonus income, which effectively increases the father's income well over the $180,000 annual salary used to compute child support at the time of judgment.   Defendant argues that there is no substantial change in circumstances to warrant the reconsideration of support at this time.

A substantial change in circumstances is only one of two possible grounds permitting the court to modify child support.   The other is “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 fifteen per cent or more is substantial.”  Connecticut General Statutes Section 46b–86(a).

The Child Support and Arrearage Guidelines Regulations (“Regulations”) specifically provide that bonus income is to be included in gross income.   Regulations Section 46b–215a–1(11)(A)(iii).   At the time of judgment, the parties could have included the bonus income in the worksheet calculation and asked the court to approve a deviation from the guidelines.   That was not done.   Rather, the worksheet simply omitted the bonus income, which made the agreed child support payment consistent with the presumptive support obligation indicated by the worksheet.   The parties then presented the agreement to the court as being in accordance with the guidelines.   The court neither made nor was asked to make a finding that application of the guidelines to the father's total compensation, including the bonus income, was inequitable or inappropriate.

The father's financial affidavit submitted at the time of judgment indicates that his additional net weekly income (after taxes) from his bonus was $1,350.   Had his net bonus income been included in the support calculation on the worksheet submitted to the court at the time of judgment, the presumptive weekly support obligation of the father would have been at least $515, or at least 24% more than the $415 weekly support ordered.   The court finds that no evidence produced at the present hearing overcomes the statutory presumption that this deviation in excess of 15% was substantial.   Therefore, the deviation authorizes the court to modify child support at this time, independently of whether there has been any substantial change in circumstances.

The court next considers the current financial affidavits and child support guideline worksheets filed by the parties.   For the reasons explained above, the court has determined that of the two child support guideline worksheets, the defendant's is more accurate—to a point.   After calculating the defendant's presumptive weekly obligation of $482, the defendant then makes a notation at the bottom of the first page of the worksheet to apply a formula claimed to be applicable due to the parties' “Shared Custody.”   Under this formula, the plaintiff's presumptive support obligation is offset against the defendant's to produce a net weekly obligation of the defendant of $335, translating to a monthly obligation of $1,440—less than the defendant is currently paying.

As claimed by the defendant, the child support guideline regulations do contain such a formula.   See Regulations Section 46b–215a–2b(d).  However, the defendant's reliance on that formula in this case is misplaced.   The regulation in question calls for the formula to be applied in “split custody,” not shared custody, situations.   The difference is explained in the definitional sections of the regulations.  Regulations Section 46b–215a–1(22) defines “shared custody” as a “situation in which a parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule.”   This is the arrangement in the present case, both as provided in the dissolution agreement and as practiced by the parties according to their testimony.  “Split custody” is defined by Regulations Section 46b–215a–1(23) as a “situation in which there is more than one child in common and each parent is the custodial parent of each child.”   Such is not the arrangement here.

There is no provision in the regulations for the split custody formula to be applied to a shared custody arrangement.   In the Preamble to the Child Support Guidelines Regulations, the Commission for Child Support Guidelines made it clear that it “continues to reject a ‘brightline’ definitional test as well as a formula approach to shared custody situations ․” Preamble to Child Support and Arrearage Guidelines, Paragraph (j)(4).

Using the defendant's own worksheet, but disregarding the reduction in support calculated by the formula which the court finds inapplicable, the court concludes that the defendant's correct presumptive weekly child support amount at this time is $482, which translates to a monthly support payment of $2,089.   The defendant argues that if the bonus income is to be considered now, when it was not considered at time of judgment, the court should permit a deviation from the child support guidelines.   The court concludes that, whatever may have been the case at the time of judgment, the evidence presented at the hearing on the present motion does not warrant a finding that application of the guidelines at this time would be inappropriate or inequitable.

ORDER

For the foregoing reasons, the plaintiff's motion to modify child support is granted.   The defendant is ordered to pay monthly child support in the amount of $2,089 commencing with the month of November 2013.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.