CT v. Jeffrey Reynolds (2013)

Memorandum of Decision on Appeal

This case involves an appeal from a Magistrate decision of April 11, 2013, claiming that Magistrate Lifshitz erred in denying the defendant's Amended Motion to Modify a child support order dated April 11, 2011.   The defendant claims, inter alia, that the Magistrate erred in failing to hold a full hearing on the defendant's Amended Motion to Modify, thereby denying the defendant his constitutional rights, and by not allowing a withdrawal of the action by the defendant, “without prejudice” to refile at a later date.

Findings of Fact

On February 14, 2011, the parties reached an agreement in Magistrate Court for an order of Joint Custody of their minor child, Taylor R., dob 5–18–07, primary residence with the plaintiff mother and a parenting plan with the father.   That same day, Magistrate Lifshitz canvassed on and accepted an acknowledgement that the child was, in fact, the defendant's biological and legal child.   The defendant claimed that he had proof that he had made many payments of support for the child's benefit since 2008.   On that date, the defendant also claimed to have two other children:  a 1–year–old with whom he claimed he was residing and a 14–year–old who lived in Jamaica who he regularly supported.

With respect to the child in residence with the defendant, the Magistrate outlined to the defendant what he needed to do in order to receive credit for a “qualified child” under the child support guidelines.   First, he needed to prove the paternity of this child with either an acknowledgement of paternity, a paternity judgment or by being married to the mother.   The defendant testified that he signed an acknowledgment at the hospital when the child was born.   The Magistrate suggested that the defendant produce a certified copy of that document at the next court date and that, if he did, that child could be considered a “qualified child” for the purposes of determining child support and any arrearage owed to the plaintiff mother in this case.

With respect to the defendant's older child in Jamaica, the defendant was permitted to submit proof of paternity by way of a birth certificate (proof under Jamaican law) on that date.   The Magistrate indicated that proof of child support payments was also required if the defendant was to receive credit through a “deviation” from the guideline support amount in this case.   The defendant was advised to produce, by the next court date, Western Union receipts or other proof that would persuade the court to find that a deviation on the pending support issue was warranted.   The Magistrate specifically advised the defendant to produce the last three months of receipts and to continue to make payments for that child and “we will discuss whether it warrants a deviation.   I will grant you a continuance to do that.   You're getting one shot at this.   You come in next time and you don't have the papers, then we do it without.”

On April 11, 2011, the scheduled hearing was held before Magistrate Olivera.   After calculating the credits for direct payments to the plaintiff, the parties agreed to an arrearage amount of $15,084.00 and they also agreed that the regular guideline amount was $169.00 per week in child support.   This amount was based on the defendant's representation in his affidavit of April 10, 2011 that his net income was $798.00 per week.

With respect to the 1–year–old he claimed to live with, the defendant produced DNA results that showed he was the biological father of the child, but produced no proof that the child resided with him.   The plaintiff testified that she had never seen the child or the child's mother at the defendant's residence and in fact, there was some evidence that the child sleeps at his grandmother's house when his mother is working.   The mother of the one-year-old was not called to testify.

On that date, the defendant produced no evidence to support his claim that he made regular support payments to the child or her parent in Jamaica.   The defendant claimed not to understand what he was told to produce eight weeks earlier when he was before Magistrate Lifshitz.   Consequently, Magistrate Olivera, without giving the defendant credit for the claimed “qualified child,” or without considering a deviation from the guidelines for the 14–year–old's claimed support, set the child support amount in the instant case at $169 per week and $31 per week on the arrearage.   The Magistrate noted that “you didn't bring today proof of it” (the proof to substantiate a qualified child or receipts to establish the support of the child in Jamaica) and “you can file a motion to change it if you come back with proof.”

Almost two years later, on January 23, 2013, the defendant filed a motion for modification alleging only that he was unemployed.   On February 22, 2013, after the defendant had regained employment, Magistrate Sanchez–Figueroa found that the arrearage owed to the plaintiff was $14,596.00.   Because the defendant had recently filed an amended Motion for Modification requesting a downward modification/deviation of the child support with a recalculated guideline support and a recalculation of the arrearage, she continued the matter to another court date.   The amended motion was based, not on the defendant's loss of employment, but rather, on resurrected claims that the defendant had a child who would constitute a qualified child under the guidelines and that he had made regular payments for the benefit of the child in Jamaica that would justify a downward deviation from the current support of $169.00 per week.   He also requested an adjustment to any arrearage owed retroactive to 2011 based on these claims.   The Magistrate commented that because the issue of the qualified child and the child in Jamaica were not a “change in circumstances” of the parties, she believed that the proper course would have been to file a Motion to Open the original judgment.

On April 11, 2013, the parties appeared before Magistrate Lifshitz for a special hearing on the Amended Motion for Modification.   When the defendant could not locate his chief witness, he requested to withdraw the Amended Motion “without prejudice” to refile at a later date.   This request was denied.   The Magistrate pointed out that the proper motion was a Motion to Open brought within four months of the original order, not a Motion to Modify based on a substantial change in circumstances, filed almost two years after the original judgment.   Magistrate Lifschitz also noted the need for an expectation of finality on the part of both the court and the other party, finding that Magistrate Olivera's “offhand remark” that the defendant could file to “change it” did not give the defendant an infinite time period to produce his evidence and seek a lowered child support number in this case

An appeal of this decision was filed on April 24, 2013, as well as an application for leave to present additional evidence to the court.   This application was granted and the defendant argued the appeal and provided additional evidence to this court on August 2 and 28, 2013 and November 1, 2013.

Discussion and Conclusion

It is clear to this court that Magistrate Lifschitz provided a “road map” as far back as January 2011, as to what evidence the defendant needed to produce first, in order to have a qualified child calculated into the child support guidelines and second, in order to request a deviation from the guideline amount.   In 2011, the defendant was given over eight weeks to produce that information and he appeared before and was given directives by three different magistrates, all of whom advised him to bring the documents in.   He failed to do so.

This court has reviewed the record and the additional evidence set forth by the defendant.   It finds that the defendant's failure to heed explicit suggestions and directions is the sole reason why the court did not consider the claim of the qualified child and the requested deviation.   Rather than following the court's directives, the defendant waited almost two years before bringing an Amended Motion to Modify, first to claim lost employment and second, almost an afterthought, to resurrect those claims made two years prior.   The Amended Motion for Modification was untimely and improper, given that there was no claim of a substantial change in circumstances of the parties between January 2011 and April 2013.   Rather, without filing a Motion to Open Judgment, it was an attempt to introduce additional evidence to support facts already claimed to be in existence at the time of all of the hearings in this matter in 2011.

The time lapse notwithstanding, this court, in considering additional evidence, requested that new guidelines be calculated with a qualified child included and considered in those calculations.   Taking into account that the defendant's income was substantially similar in 2013 to his income in 2011, the calculations revealed that even with one qualified child considered, the defendant would not meet the 15% change in the support amount required by statute for this court to find a substantial change in circumstances.

This court also reviewed the receipts provided by the defendant which he claimed would verify the regular support he paid for the 14–year–old.   The evidence considered by the court were payments of varying amounts from 2007 to 2010, totaling $1,390.00 and addressed to at least seven different recipients, none of whom appear to be the child's mother whose name was listed on the child's birth certificate.   Despite the fact that the defendant claimed to regularly support this child at several hearings in early 2011, the defendant produced only 2 receipts, totaling only $120.00, for the one and one-half years prior to 2011.   Finally, the defendant produced receipts for the time period 2011 to 2013 totaling only $1,350, again addressed to various recipients, none of whom appear to be the child or her mother.   In sum, there was no credible evidence that the defendant had paid regular support for the child in Jamaica either prior to his first claims in 2011, or since that time.

For all of the foregoing, the decision of the family support magistrate is affirmed.

Prestley, J.

Prestley, Linda Pearce, J.