Julie Denomme v. Steven Denomme (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR MODIFICATION # 113

This appears to be a matter of first impression in view of the Supreme Court decision in Olson v. Mohammadu, 310 Conn. 665 (2013).

A review of the record reveals that the parties were married on January 8, 2000.   During the course of their ten-year marriage, the parents had two children.   In 2010, the plaintiff, who at the time was living in Connecticut with the children filed for divorce.   The defendant was living in Florida.   The parties were divorced pursuant to a marital settlement agreement dated July 14, 2011.   The court awarded joint legal custody of the minor children with plaintiff having primary residence of the minor children and the defendant having reasonable, liberal and flexible visitation as permitted by his military work schedule.   Pursuant to the divorce decree, the defendant was ordered to pay the plaintiff $244.00 per week as support for the minor children of the marriage, a monthly payment of $1,049.20, current child care cost of $216.00 per week and one-half of work-related daycare and work-related camp.

The parties appeared before the undersigned on February 24, 2014, relative to the defendant's motion to modify.

FINDINGS OF FACTS

The defendant voluntarily retired from the U.S. Navy in December 2012.   The defendant has a medical field background.   The defendant served twenty-two years and four months before voluntarily retiring from the Navy and received an honorable discharge.   The defendant admitted that his current wife asked him to retire from the Navy, but this was after his return in September 2012, from his last 9–month deployments to Afghanistan.   The defendant testified credibly that his retirement was due to the combat wounds he witnessed in Afghanistan in 2012, and due to the mental strain of numerous deployment and that any further deployments could lead to a mental breakdown.   He also argued that it was in the best interest of the children that he retire from the Navy. The defendant's net monthly income was $5,000 while serving in the Navy and has decreased to a net of $1,800 a month, receiving a pension only.   The defendant went back to school and is trying immensely hard to find a medical field position.   On the basis of this reduction in salary, the defendant requested modification of child support payments, claiming the $3,200 drop constituted a substantial change in circumstances which is the prerequisite to any successful modification.   There was no evidence offered as to the defendant's present earning capacity.

LEGAL DISCUSSION

A motion to modify can be justified by a substantial change in circumstances.   The change that creates the inability to pay “must be excusable and not brought about by the payer's own fault.”  “The modification can't result from the party's “own extravagance, neglect, misconduct, or other unacceptable reason.”  Sanchione v. Sanchione, 173 Conn. 397 (1977).   The moving party must demonstrate circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it.

The Connecticut Supreme Court has recently had an opportunity to address this very issue where a party voluntarily creates the change in circumstances.   Rather than simply deny a modification brought on by one's voluntary choice, trial courts are now to assess the “motivations underlying the voluntary conduct in order to determine whether there is culpable conduct foreclosing a threshold determination of a substantial change in circumstances.”  Olson v. Mohammadu, 310 Conn. 665, 684 (2013).   Naturally, a court may still deny a modification if one purposely made the change in circumstances in order to avoid his or her financial obligations.

In such matters, the court must first determine whether the moving party has established a substantial change in circumstances.   If the voluntary conduct gives rise to the alleged substantial change in circumstances warranting modification, the court must assess the motivation underlying the voluntary conduct to determine whether there is culpable conduct.   If the court finds a substantial change in circumstance, then the court may determine what modification, if any, is appropriate under the changed circumstances.

Here, the court finds that the defendant's motivation for the change was not due to his extravagance, neglect or misconduct.   There is no finding of culpability of the defendant's conduct or that the defendant was trying to avoid his financial obligations.   The court finds that he had a well reasoned and justifiable cause to avoid further combat deployments to Afghanistan, including that it was personally traumatizing, life threatening and creates barriers to having a normal family life.

The child support guidelines give a presumptive child support based on the current incomes of $120 per week from the father plus 25% of any unreimbursed medical expenses and work-related daycare.   Based on the defendant's offer contained in his brief dated March 8, 2014, that he continue to pay $200 per week in child support, the court will adopt that stipulation as an order of the court.   This is a justifiable deviation from the presumptive guidelines amount based on the overall coordination of family support and the best interest of the children.

The parties also stipulated in open court that the defendant owes an arrearage in the amount of $7,900.17 as of February 24, 2014 to be repaid in the monthly amount of $658.34 commencing September 1, 2014 or when he obtains employment, whichever comes first and that he would pay to her 50% of his 2013 tax refund toward said arrearage.

ORDERS

The motion to modify is granted.   The defendant shall pay $200.00 a week in child support and 25% of any unreimbursed medical expenses, work-related daycare, extracurricular activities and camp retroactive to February 24, 2013 and pay the arrearage of $7,900.17 in the monthly amount of $658.34 commencing September 1, 2014 or when he obtains employment, whichever comes first.

BY THE COURT

Kenneth L. Shluger, Judge

Shluger, Kenneth L., J.