Commissioner of Social Services, Clarissa Rios v. Ansell J. Ferreyra (2014)

MEMORANDUM OF DECISION

This matter is an appeal to the Superior Court by the Commissioner of the Department of Social Services of the Family Support Magistrate's November 4, 2013 decision regarding arrearages.   More specifically, the issues before the court are whether the burden of proof that defendant had ability to pay was improperly shifted to the State and whether the resulting arrearage was calculated erroneously.

FACTS

Defendant is the father of the minor child born May 1, 2010.   Plaintiff is the mother of the minor child and has been receiving cash assistance from the State.   Defendant is approximately 22 years old, a high school graduate and has no criminal history.¹  On September 16, 2013 he appeared before Magistrate Hutchinson and was informed of his obligation to support his child and was instructed to conduct a job search.   He voluntarily agreed to pay $20.00 per week in child support and his case was continued to October 7, 2013 for a review.   On that date, the defendant had yet to secure employment and the matter was again continued.

A final hearing before Family Support Magistrate Schulman (“FSM”) was held on November 4, 2013.   The defendant did not have full-time employment.   The only employment history that defendant possessed was a part-time position during the summer of 2013 at McDonalds that he held for three weeks before he was terminated.   The FSM instructed the State to present evidentiary evidence to determine an appropriate support order.²  The State presented evidence that the total arrearage was $10,300 as of September 16, 2013.   Of that amount, the State was owed $2,561 and the plaintiff mother $7,739.³  The FSM declined to accept the State's figure and instead found an arrearage of $980 to the State and $2,180 to the plaintiff mother.   The figure was calculated by multiplying the number of weeks from October 22, 2012 to May 31, 2013 and multiplying them by twenty dollars.   The court also found a present ability to pay based upon a minimum wage capacity.   This appeal followed.

DISCUSSION

The relevant statutory provision provides as follows:

46b–215(a)(1).  The Superior Court or a family support magistrate may make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to such person's spouse or a child under the age of eighteen or as otherwise provided in this subsection, according to such person's ability to furnish such support, notwithstanding the provisions of section 46b–37.

46b–215(a)(7)(B). In the determination of support due based on neglect or refusal to furnish support prior to the action, the support due for periods of time prior to the action shall be based upon the obligor's ability to pay during such prior periods, as determined in accordance with the child support guidelines established pursuant to section 46b–215a.   The state shall disclose to the court any information in its possession concerning current and past ability to pay.   If no information is available to the court concerning past ability to pay, the court may determine the support due for periods of time prior to the action as if past ability to pay is equal to current ability to pay, if current ability is known.   If current ability to pay is not known, the court shall determine the past ability to pay based on the obligor's work history, if known, or if not known, on the state minimum wage that was in effect during such periods, provided only actual earnings shall be used to determine ability to pay for past periods during which the obligor was a full-time high school student or was incarcerated, institutionalized or incapacitated.

In order for the State to prevail, it must first prove that “the defendant refused or neglected to furnish the necessary support” for the minor child.   The plaintiff mother had been receiving cash assistance from the state prior to the filing of the underlying Support Petition in August 2013.   Additionally, the defendant made no child support payments for the minor child until he voluntarily agreed to make payments of $20 per week on September 16, 2013.   It logically follows that “if the defendant has failed to contribute to the financial well-being of his child since the date of her birth, he has neglected to furnish the necessary support.”

The first issue before the court is whether the burden of proof was improperly shifted to the State.  “The mere failure to provide support is not controlling on the question of liability.”  Dinkins v. Pearson, 2008 WL 2967062 at 4 (Super.Ct. October 9, 2007) [44 Conn. L. Rptr. 379].  “The test is whether neglect and refusal are without legal justification.”  State v. Lugg, 144 Conn. 21, 23–24 (1956).  “The burden does not rest upon the State to prove that the defendant was without legal justification rather it is an affirmative defense available to the defendant for which he bears the burden of proof.”   Dinkins at 4. The summons in the instant action clearly states, in support of this proposition, “You are required to appear in court to raise any defense you may have to these claims.”   The FSM erred by imposing the burden of proof on the State.

The second issue before the court is whether the FSM improperly calculated defendant's arrearage.   Having determined that the defendant “neglected to furnish” financial support for the minor child prior to the institution of the action, the issue then becomes the amount of past support for which the defendant is liable.   In making this determination, the court is guided by the provisions of § 46b–215.   Specifically, the court may consider the current ability to pay, if the ability is known.   If the ability is unknown, the court is obligated to determine past ability on the defendant's “work history, if known, or if not known, on the state minimum wage that was in effect during such periods.”

As stated previously, the defendant is a high school graduate with no impairments that would have prevented him from obtaining and maintaining gainful employment during the periods in question.   His work history is negligible.   Therefore, pursuant to the clear and unambiguous language of § 46b–215(a)(7)(B) the defendant's past ability to pay shall be based on the state minimum wage in effect during the periods of neglect.

Accordingly, the FSM's conclusion that the presumptive amount of child support for the period of October 22, 2012 to May 31, 2013 was twenty dollars per week is contrary to law and shall be vacated and remanded.   The FSM shall enter an order for child support for the period of October 22, 2012 to May 31, 2013 based upon the minimum wage in effect during the aforesaid period.

SO ORDERED.

BY THE COURT,

Ficeto, J.

FOOTNOTES

FN1. Defendant graduated from high school in 2010..  FN1. Defendant graduated from high school in 2010.

FN2. More specifically, the Court made the following comments:  “I'm sorry.   Counsel, with all due respect, I don't see an ability [to pay] there and I'm not going to overburden him ․ unless you can prove he had an ability [to pay].”.  FN2. More specifically, the Court made the following comments:  “I'm sorry.   Counsel, with all due respect, I don't see an ability [to pay] there and I'm not going to overburden him ․ unless you can prove he had an ability [to pay].”

FN3. The figures are based on the State's claim for an order of support from the period of October 12, 2012 to May 30, 2013..  FN3. The figures are based on the State's claim for an order of support from the period of October 12, 2012 to May 30, 2013.

Ficeto, Anna M., J.