2009 Ct. Sup. 6722
No. FA 91-0393287Connecticut Superior Court Judicial District of Hartford at Hartford
April 14, 2009
MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR MODIFICATION OF CHILD SUPPORT AND MOTION FOR COUNSEL FEES
BARALL, JTR.
The defendant filed a motion for modification of child support on January 20, 2009. The marriage of the parties on October 2, 1982, was dissolved ten years later on October 30, 1992. The parties are the parents of two children, Benjamin William Zionts, born October 6, 1986, and Max Joshua Zionts, born May 16, 1990.
On December 5, 2001, the parties agreed to the following: “Child support shall be modified for the two minor children to $320/wk without prejudice, as to retroactivity, insurance payments, imputed child support for other children and any and all other factors which may effect child support.” That agreement was ordered by Caruso, J., on 12/5/01.
On February 1, 2002, Judge Picard ruled on several issues, including a motion to modify child support. He found that the $320 weekly child support amount agreed to and ordered on December 5, 2001, was the proper presumptive support, but that the plaintiff was entitled to an increased amount as a deviation because the normal visitation by the defendant, as contemplated was not occurring. Therefore, he found that an upward deviation was appropriate and he increased child support for the two children to $350 per week, retroactive to November 6, 2001.
The defendant’s affidavit filed on February 1, 2002, revealed the following: His gross income was $2,440 per week and his net income was $1,630 per week; and his assets were $36,175 and his debts $1,336. He was functioning in his own business as a mortgage consultant.
The plaintiff was also operating her own business, and according to her affidavit, she was grossing $886 per week and netting $451 per week. Her affidavit at that time reflected her assets were worth $112,624, and her liabilities $6,696. CT Page 6723
The defendant continued to pay the $350 per week in child support to the plaintiff, which was ordered for the two children even after Benjamin, the oldest, had reached the age of majority in 2004. The defendant testified that his business went under around August 2008 and he continued to pay all of his bills, including the $350 per week in child support, by liquidating his pension assets and maxing out his credit card debt. The defendant’s current affidavit reflects no income. His affidavit reveals only $5 in assets and debts of $150,234.61
On January 20, 2009, defendant filed a motion to modify his child support because he no longer had income, liquid assets or credit card capacity to pay his child support.
The plaintiff’s affidavit reveals that she receives gross income of $802 and net income of $617. Her assets total $242,312 and her debts $32,165.
On February 11, 2009, the parties agreed that the defendant’s motion for modification, together with plaintiff’s motion for counsel fees, would be assigned for a hearing on April 8, 2009, and that the orders would be applied retroactively to February 11, 2009, with the right of the defendant to argue retroactivity to the time of the service of his modification motion on January 20, 2009.
The period in question as to the modification is either January 20, 2009, or February 11, 2009 to May 16, 2009. May 16, 2009 is when the minor child, Max, reaches the age of 19 because Benjamin in no longer a minor, and the modification would not pertain to him.
Since closing his business, the defendant has not received any income from employment but he does currently work for Connecticut Mortgage Services, Inc., as a mortgage originator but on a commissions basis only. He currently has five mortgage applications that he has submitted to Connecticut Mortgage Services, Inc., which would generate $11,300 in gross fees, from which would be deducted the services fees of Connecticut Mortgage Services, Inc. and the defendant’s family’s medical insurance premium.
At the time of the hearing on April 8, 2009, the probability of defendant’s compensation is not bright, and the amount, even if it was to pass muster, would still be subject to a deduction by Connecticut Mortgage Services, Inc. of (a) service fees; and (b) the defendant’s family’s medical insurance premium which the company is paying.
CT Page 6724 Since the parties divorce in 1992, the defendant has remarried and has two children with his current wife. They live in a house owned by his wife which has limited equity because of a mortgage and equity loan. His wife has borrowed $20,000 from her family to keep the house from foreclosure.
The court finds that the defendant did everything he could do to pay his child support for his son, Max, and waited until all his financial resources, assets, and credit card capacities were exhausted. Therefore, the court will modify his support order for Max to $0, effective January 20, 2009. The defendant will report to the plaintiff and the court on the day of receipt, any income he receives prior to May 16, 2009.
The motion for counsel fees is denied in accordance with the criteria set forth in Conn. Gen. Stat. §§ 46b-62 and 46b-82.
SO ORDERED.
CT Page 6725