Katherine Weismuller v. Thomas W. Weismuller
KNOFA064103527S
????Decided: January 18, 2012
A review of the record reveals that the parties were divorced pursuant to a legal separation agreement on April 17, 2007. ? There are two minor children of the marriage who are now 11 years old and 9 years old. ? Pursuant to the very detailed and comprehensive separation agreement, the wife was permitted to relocate to the state of Alaska with the children with ample opportunity for the children to visit with the father both during the school year in Alaska and in Connecticut for all of June, July and August each summer.
This matter was heard by the undersigned on January 5 and January 12, 2012. ? The parties were permitted until January 18, 2012 to file trial briefs. ? The plaintiff wife was represented by counsel and waived her appearance to attend the hearings. ? The defendant husband, an attorney and formerly, the chief judge of the Mashantuckett?Pequot Tribal Court represented himself. ? Essentially, the husband claimed that his failure to be reappointed to the court in January 2011 and this large loss of income constitutes a substantial change in circumstances justifying a downward modification of his child support obligation. ? He filed a motion for modification dated March 16, 2011. ? The parties had appeared before the court, Boland J., on June 27, 2011 wherein the court ordered that the child support be reduced from $344 per week, as ordered in the original judgment, to $80 per week but that the matter be reconvened at a later date to allow the plaintiff wife time to conduct discovery relative to the plaintiff’s earnings and earning capacity. ? The matter reconvened on January 5 and January 12, 2012 for that purpose.
FINDINGS OF FACT
1.?The parties were divorced pursuant to a legal separation agreement on April 17, 2007. ? There are two minor children of the marriage who are now 11 years old and 9 years old.
2.?Pursuant to the very detailed and comprehensive separation agreement, the wife was permitted to relocate to the state of Alaska with the children with ample opportunity for the children to visit with the father both during the school year in Alaska and in Connecticut for all of June, July and August each summer.
3.?At the time of the divorce, the plaintiff husband was employed as the chief judge of the Mashantuckett?Pequot Tribal Court earning approximately $170,000 per year. ? He was ordered to pay child support in the amount of $344 per week.
4.?On or about January 2011, the plaintiff was not reappointed to his position and had no income or employment. ? His employer offered to him a severance package worth approximately $18,000 (exhibit 5) which he refused to accept.
5.?The plaintiff has been an attorney for approximately 20 years and was a judge of at least two tribal courts for approximately 15 of those years. ? He is admitted to practice law in the state of Washington. ? He has great expertise in the fields of Indian affairs, the gaming industry, Indian law, tribal regulation, criminal justice and Native American rights. ? He has held positions on numerous Boards including the National Criminal Justice Association. ? In addition, he claims expertise in the mediation and negotiation of non-Indian disputes including civil matters and divorce. ? In addition, he holds one or more advanced black belts in martial arts.
6.?On or about January 2011, the defendant husband joined the Connecticut Academy of Martial Arts, LLC as a member and 50% owner. ? He worked for said LLC for approximately six months with no compensation which he estimates to be worth $10,000. ? He presently claims to earn $500 gross or $363 per week net from his martial arts.
7.?The defendant claims that he has and continues to undertake an exhaustive search for consulting, employment or attorney work within his field of expertise. ? Notwithstanding, he produced into evidence only the following: ?an e-mail from USAJobs (exhibit D) acknowledging that he had logged onto this federal government source for federal jobs and employment information; ?a cover letter seeking employment as an attorney with the FBI, a cover letter seeking employment with the United States Attorney’s office; ?a cover letter seeking employment with the tribal council of the Spokane Tribe, a cover letter seeking employment with the Colville tribal court, a cover letter seeking employment with the Ho Chunk tribal court, a cover letter seeking employment with the Nez Perce tribe and a cover letter seeking employment with the Red Cliff tribe (exhibit E). ? There was no evidence that jobs at these entities actually existed.
8.?The defendant also introduced into evidence pages from the Connecticut Academy of Martial Arts web site (exhibit B) and pages from the Weissmuller Consulting and Mediation website (exhibit A).
9.?The court finds that the defendant has failed to sustain his burden of proof that he has engaged in a good-faith, comprehensive and meaningful search for employment within his field of expertise. ? Despite his training as a litigator, an attorney and a judge, he has failed to adequately document his claim with reliable evidence. ? In the nine months since this motion has been pending, the parties had engaged in protracted discovery and in a lengthy contested hearing on June 27, 2011. ? Despite the defendant’s claims of having made an exhaustive and comprehensive daily search for employment, he produced only a handful of documents which could arguably support that claim. ? While the court might overlook such a lack of preparation or preservation of evidence with an untrained or uneducated self-represented person, this particular self-represented person is an experienced, educated and highly intelligent attorney who has had many months to prepare his case.
10.?The husband has taken no steps to seek admission as an attorney in the states of Connecticut or Rhode Island nor to return to the state of Washington where he is admitted to practice and would be much closer to his children.
11.?The husband presently earns $500 per week as a martial arts instructor. ? The wife presently earns $2,294 per week. ? A strict application of those figures would yield a presumptive child support order of $74 per week.
12.?The court finds that the husband has an earning capacity of not less than $75,000 per year or $1,486 per week. ? A strict application of those figures would yield a presumptive child support order of $198 per week.
The husband argued that a deviation from the child support guidelines should apply due to his extraordinary visitation expenses including travel to and from Alaska and the fact that the children reside with him for approximately 105 days per year in the summer. ? The court agrees that some deviation is called for as it can take judicial notice of the expenses of air, hotel, food and car rental while visiting in Alaska. ? Likewise, the court finds that the husband’s summer access with the children is substantial.
14.?By all accounts, the husband is a dedicated father and there was no evidence that he had ever failed to make a court ordered child support payment.
LEGAL DISCUSSION
?It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ? Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.? ?Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), Eliah v. Eliah, 99 Conn.App. 829, 833 (2007). ??It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ?? Weinstein v. Weinstein, 280 Conn. 764, 772 (2007). ? While the court understands and appreciates that a highly paid professional may take significant time to return to the workforce, the court concludes that this time is fast approaching.
ORDERS:
1.?The father shall pay child support in the amount of $150 per week and 30% of any unreimbursed medical or dental expenses or work-related day care effective this date.
Shluger, J.
Shluger, Kenneth L., J.