Diane Gorski v. Stephen J. McIsaac (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR MODIFICATION OF JUDGMENT POSTJUDGMENT (# 118);  AND AMENDED MOTION FOR MODIFICATION OF JUDGMENT, POSTJUDGMENT (MOTION # 119.00).

On November 15, 2013 the court heard the defendant's Motion for Modification of Judgment Postjudgment dated June 20, 2013 (Motion # 118.00) as amended by his Amended Motion for Modification of Judgment, Postjudgment dated July 25, 2013 (Motion # 119.00).   Following the hearing the parties were afforded the opportunity to file briefs, with the defendant's brief due by December 16, 2013 and the plaintiff's by December 31, 2013.

FINDINGS

The parties were divorced by a judgment of the Commonwealth of Massachusetts Probate Court dated September 21, 1998, which judgment was modified as set forth in a Modification Judgment of the Massachusetts Probate Court and Family Court dated April 28, 2000, and further modified by that court on September 22, 2000 in a Memorandum and Amendment to Modification Judgment.

Under the terms of the judgment dated September 21, 1998, the plaintiff was awarded sole legal and physical custody of the couple's only child, Mary, born February 9, 1995.   The judgment ordered the defendant to pay to the plaintiff “the sum of $200 per week for the support of the unemancipated child of the parties.”   It further ordered the parties to share in the eventual cost of the child's college expenses “to the extent that they are respectively able to do so.”   The subsequent modifications of the judgment referenced above did not alter the sole custody and child support provisions, dealing instead primarily with visitation and related issues.

Since the time of the parties' divorce, the plaintiff and Mary have resided together continuously in the State of Connecticut (subject to Mary's recent enrollment in the University of Connecticut as noted below).   In its Memorandum and Amendment to Modification Judgment entered September 22, 2000, the court closed its decision with the following:

The child now having resided in Connecticut for well in excess of one year, this court declines any further jurisdiction over the custody and visitation of the child.

On September 4, 2002 the plaintiff filed a certified copy of the Massachusetts divorce judgment with this court pursuant to Section 46b–71 of the Connecticut General Statutes.   The defendant to this date has continued to pay the plaintiff the $200 weekly support ordered as part of the original divorce judgment.

The parties' child, Mary, has now attained the age of nineteen years old, graduated from high school, and enrolled as a freshman at the University of Connecticut for the 2013–2014 academic year.   She is registered as a Connecticut resident and her tuition is thus set at in-state rates.   Her parents have agreed that they will each pay 40% of her college expenses, with Mary herself to be responsible for the remaining 20%.

Mary resided in her mother's home until the day she moved into her campus dormitory.   She receives continuing financial support from both of her parents, above and beyond their respective contributions to her college tuition, room, board and expenses.   Mary is not financially able to support herself.

The plaintiff maintains Mary on her health insurance coverage.   She pays for Mary's unreimbursed medical expenses, usually without contribution from the defendant.   She pays the cost of covering Mary on her automobile insurance;  Mary testified that she still drives the mother's car when she goes home from college.   The plaintiff provides Mary with spending money and purchases some necessities for her to have at school.   Mary still has a bedroom in the plaintiff's home, furnished with whatever items Mary did not choose to take to college with her.

The defendant also provides spending money to Mary in addition to his college expense contribution.   He buys clothes and other items for her, and he pays dining and entertainment expenses for her when she visits him in the Boston area.   He has purchased cell phones, smart phones and a laptop computer for her over the years, and continues to pay for the internet service to her smart phone.   He provided health insurance coverage for her in the past.   He stated his intention to purchase a car for her in the future and to reimburse her for her 20% share of college expenses.

Mary relies on both parents for emotional support and other help.   She testified that she is most likely to call her mother if she has a problem with “women's issues” but otherwise is inclined to call her father first about problems she has.   The plaintiff still coordinates the bulk of Mary's medical care and appointments, a significant task due to the serious health problems Mary has faced during her young life.   Mary's medical providers are all located in Connecticut.

PRELIMINARY MATTERS

As noted above, the defendant's brief was due, and was filed, by December 16, 2013.   At approximately the same time that he filed his brief, the defendant filed a separate motion requesting additional time to brief his constitutional arguments.

The court notes that the defendant's assertion of constitutional arguments at the time of the hearing was one of the reasons the parties were afforded the opportunity to file briefs in the first place.   It is further noted that the brief filed by the defendant does include a statement of his constitutional claims.   For these reasons the defendant's motion to enlarge the time to file his constitutional arguments is denied.

CONCLUSIONS

The court first addresses the claim of the defendant that his child support obligation terminated when Mary reached the age of eighteen years.   In support of this claim, the defendant asks this court to interpret the language of the Massachusetts dissolution judgment in light of the wording of a prior, tentative agreement of the parties which was neither approved by the Massachusetts court nor incorporated into the judgment of dissolution.

Apart from any dispute the parties may have as to the meaning and intent of the language of the prior agreement, this court finds no basis for altering the clear wording of the judgment of the Massachusetts court to conform to the language of a previous agreement between the parties which that court expressly chose not to accept.

Rather, this court concludes that the meaning of the pertinent provision of the dissolution judgment is precisely what it says:  that the defendant's support payments for the benefit of his daughter Mary shall continue so long as she remains unemancipated.

For the determination of whether Mary has in fact become emancipated, this court must follow the substantive law of the Commonwealth of Massachusetts.   Connecticut General Statutes Section 46b–71(b).  The parties concur that the applicable statute on this issue is Massachusetts General Laws Chapter 208, § 28, which provides that child support may be ordered for “a child who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance.”   The courts of Massachusetts have applied this statutory test to determine whether emancipation for the purpose of termination of child support has occurred.  Tatar v. Schuker, 70 Mass.App.Ct. 436, 874 N.E.2d 481 (2007).

The statutory test consists of two prongs:  domicile and principle dependency.   As to the question of domicile, the Supreme Judicial Court of Massachusetts provides the following guidance:

Everyone has a domicil of origin.   A domicil once established continues until a new one is acquired regardless of changes in temporary sojourn.   Mere absences from home even for somewhat prolonged periods do not work a change of domicil.   Intention without the concurrence of the fact of residence is not sufficient to change or to create domicil.   Both must coexist.   Aspiration, hope, desire or mere verbal assertion, although evidence of intention, cannot overcome the force of irrefutable facts.

Tuells v. Flint, 283 Mass. 106, 186 N.E. 222 (1933).   Applying these principles to the present case, the court finds that the domicile of Mary is with her mother in Glastonbury, Connecticut.   This has been Mary's home for many years, as she has been in the sole custody of her mother since the dissolution of the parties' marriage.   It is the place she reported as her home when she registered as a student at the University of Connecticut.   Although it may be her stated intention to reside primarily with her father in the future, that statement of future intention does not change her present domicile.

The next question is whether Mary, being domiciled with her mother, is principally dependent upon her for maintenance.   As noted in the court's findings, both parents contribute financially to Mary's education and support.   But the court finds that the contributions of the plaintiff, as a whole, continue to outweigh those of the defendant at this point in time.   The plaintiff has provided Mary with her principal home and the basic necessities of life, and continues to maintain a room for her in the family home during Mary's absences to attend college.   She and the defendant pay equal shares of Mary's college costs.   She provides Mary's current health insurance and pays all of Mary's unreimbursed medical expenses.   She pays the cost of Mary's automobile liability insurance and continues to provide Mary with a car to drive when she is home from college.   The plaintiff provides Mary with spending money and necessities while she is away at school.

There is no doubt that the defendant also provides financial benefits to Mary, as detailed in the above findings of the court, in addition to the college expenses he pays.   But the statute does not require a finding that Mary is solely dependent on the plaintiff with whom she shares a domicile, only that she is “principally dependent.”   The court finds that, on balance, the plaintiff has provided and continues to provide more of the resources for Mary's maintenance, including living space for her in the home which remains Mary's domicile, than does the defendant.   In reaching this conclusion the court notes that while the defendant's expressed intentions to buy a car for Mary in the future and to reimburse her the 20% share of college expenses borne by Mary are admirable, expressions of future intentions do not equate to current financial support.

For the foregoing reasons, the court finds that the defendant has not demonstrated that Mary has become emancipated at this time and has not established facts that would warrant the termination of his child support obligation.

Finally, the court has considered the constitutional arguments raised by the defendant at the hearing and cited in his brief.   The court finds no basis upon which to conclude, as urged by the defendant, that Massachusetts General Laws Chapter 208, § 28 is either unconstitutionally vague or under-inclusive as it pertains to this case.   The concept of domicile used in the statute is well established, the language concerning principal dependency is clear, and the scope of the statute is reasonable.

The court is likewise unpersuaded by the defendant's claim that the lack of a specific termination date in the wage garnishment order against him is a violation of his due process rights.   On the contrary, the defendant has ample opportunity to apply for and receive a hearing on the termination of child support payments, as he did here, which if successful would result in the termination of the garnishment order.

ORDER

The defendant's motion (# 118.00) and amended motion (# 119.00) for modification of judgment, post-judgment, are denied.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.