2003 Ct. Sup. 8453-bw
No. FA97-0083884 SConnecticut Superior Court, Judicial District of Middlesex at Middletown
July 18, 2003
MEMORANDUM OF DECISION RE MOTION TO MODIFY CHILD SUPPORT PAYMENTS AND MOTION FOR CONTEMPT
JONES, JUDGE.
Plaintiff Michael Martin has filed three postjudgment motions for modification of child support. Defendant Susan Martin has filed a motion for contempt, addressed in substantial part to the child support issue. As background, it is noted that the parties’ judgment of dissolution, incorporating their separation agreement, dated January 26, 1999, provides in part that as the non-custodial parent plaintiff Michael Martin shall pay child support in the amount of $800 per week to his former spouse, defendant Susan Martin, for the benefit of their three minor children: Sean, born March 19, 1992; Matthew, born September 12, 1989; and Taylor, born July 25, 1997; and pay one-half of “summer camp.”
Essentially, the plaintiff claims that there has been a substantial reduction in his income, and an increase in the defendant’s assets and income, which justify a reduction in the child support order. In November of 2002 the plaintiff reduced his child support payments to $400.00 per week. He was under the impression that he had substantially overpaid the $800 weekly payment order and that his voluntary reduction would adjust his overpayments.
In her motion for contempt, defendant Susan Martin alleges, inter alia, that the plaintiff has not paid the child support as ordered; and that he has defaulted by not paying one-half of the summer camp expenses for the minor children, and by not paying one-half of the uninsured medical costs for the children.
On diverse days commencing on December 4, 2002, and concluding on April 10, 2003, the court heard the parties with respect to the request to modify child support, the motion for contempt, and set a briefing schedule.
From the evidence presented the court makes the findings and enters the orders that follow. CT Page 8453-bx
The parties’ Separation Agreement, dated January 26, 1999, incorporated into their judgment of dissolution of the same date, requires, in part, that the defendant pay $800 per week as child support; that he pay one-half of any and all fixture on reimbursed, uninsured medical, dental, mental health, orthodontist, ophthalmology and prescription expenses for the children; and that he pay “1/2 summer camp for the children.”
For all times material plaintiff Michael Martin has been a stock broker and the Vice President of the Smith Barney brokerage house. His income is based upon commissions generated from the sale and management of securities. At the time of entry of the child support order on January 26, 1999, the plaintiff’s gross income (exclusive of CAP awards)[1]
from his principal employment was $3,130.00 per week, and his net income was $1,773.74, per week.
Defendant Susan Martin, a CPA, is the Director of Finance of IRMA, LLC. She received approximately 60 percent and the plaintiff approximately 40 percent of major marital assets in the stipulated judgment of dissolution.
Judicial precedent, statutory and regulatory law direct the court to compare the parties’ present financial situation to that at the time of the entry of the child support for the purpose of determining whether there has been a substantial change in circumstances warranting a modification. Borkowski v. Borkowski, 228 Conn. 729, 736 (1994). Connecticut General Statutes Section Sec. 46b-86 entitled “Modification of alimony or support” provides that
(a) [u]nless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial.
In considering the establishment of modification of a child support order, “the child support guidelines shall be considered in addition to CT Page 8453-by and not in lieu of the criteria for such awards established in . . . 4bb-86 . . .” Conn. Gen. Stat. Sec. 46b-215 (b). Attention now shall focus on the specifics of each motion.
Specifics of Motions for Modification of Child Support
As stated earlier, the plaintiff has filed several motions for modification of child support. The first motion to reopen and modify was filed on April 25, 2002 (No. 169). In this motion the plaintiff makes reference to the $800 per week child support order of January 26, 1999, and asserts that there has been a substantial change in circumstances in that his gross income is approximately $1000 less than it was at the time of the dissolution, and in that the expenses of the defendant have been drastically reduced. The motion was served on May 14, 2002.
On October 4, 2002 the plaintiff filed another motion to reopen and modify (No. 174) which contains the identical wording of the previous motion to reopen and modify; thus, claiming a $1000 reduction in his income) and a drastic reduction in the defendant’s expenses.
On December 3t 2002, the plaintiff filed an amended motion to reopen and modify, dated November 26, 2002. (No. 181.) In this amended motion the plaintiff re-alleges that his income has decreased by approximately $1000. He further alleges that the defendant’s expenses have dramatically decreased because she has a non-related male residing in her residence who is or should be paying a substantial portion of the household expenses. He also alleges that the defendant has accumulated substantial assets and that he has dramatically increased expenses.
The Substantial Changes in Circumstances
An examination of the parties’ income at the time of the establishment of the child support order on January 26, 1996, and at the time of the evidence produced for consideration at the hearings on the present modification requests is one of the principal processes for resolving the issue as to whether a substantial change of circumstances has occurred. The evidence adduced at the hearings clearly establish that there has been a substantial change in the parties’ financial circumstances since the entry of the initial order of child support.
From the evidence submitted during the hearings the court finds that at the time of the entry of the January 26, 1999 order for child support in the amount of $800 per week, the plaintiff’s gross income (exclusive of CAP awards) was $3,130,00 per week, and his net weekly income was $1,773.74; At that time the defendant’s gross weekly income was $1,592.00 CT Page 8453-cz per week, and her net weekly income was $927.00.
The review further reveals that plaintiff Michael Martin’s income from commissions at Smith Barney descended from an adjusted net of $1,420.30 reported on his financial affidavit, dated January 26, 1999 to a reported net of $996.75, as reported on his financial affidavit of December 4, 2002. The review also discloses that at the time of the hearing in April of this year the defendant’s gross income was $1,486.00 and a weekly net income of $825.00. The substantial reduction in plaintiff’s income was created by the negative effect on the market caused by the destruction of the world trade center on September 11, 2002, a bear market economy, and to the loss of investor confidence. It is noted that defendant Susan Martin’s reported net income increased from $793 on January 26, 1999 to $1,436 on December 4, 2002.
At the time of the hearing, plaintiff Michael Martin’s weekly gross income was $1485.92; and his net income was $825.23 — a substantial reduction indeed from his net income of $1,420.30 existent at the time of the establishment of the $800.00 child support stipulated order. At the time of the conclusion of the hearings in this matter defendant Susan Martin’s weekly gross income was $1,863.00 and her net income was $1,460.00. Applying the child support guidelines to the parties’ present net income fixes the basic child support weekly obligation at $650.00, and the plaintiff’s weekly share at $230.
New Child Support Order
Accordingly, the motion to reopen and modify (No. 181) is granted, and plaintiff Michael Martin is ordered to pay child support in the amount of $230 per week.
Retroactivity of New Child Support Order
The order that plaintiff Michael Martin pay child support in the amount of $230 per week is retroactive to December 4, 2002.
Defendant Susan Martin’s Motion for Contempt
In her Motion for Contempt (No. 176) defendant Susan Martin claims that plaintiff Michael Martin has failed to meet the following obligations imposed upon him by their judgment of dissolution: 1) to pay child support in the amount of $800 per week; 2) to pay one-half of the summer camp expenses of present;[2] 3) to provide a copy of his annual tax return to her; 4) to pay one-half of all medical costs not covered by insurance for the minor children; 5) to provide an annual accounting to CT Page 8453-ca the defendant on certain UGMA accounts; and 6) to provide proof of a life insurance policy naming the children as beneficiaries. With regard to the matter of the child support payments, the court finds that the plaintiff was under the impression that his child support payments were current. Furthermore, it is noted that the plaintiff through counsel attempted to resolve the dispute as to the defendant’s claim of delinquent child support payments. It is noted that the defendant for some time had in her possession a spreadsheet showing the payments made by the plaintiff and the balance due. This spreadsheet was not presented to the plaintiff until the hearing on the motion for Contempt. Had this spreadsheet been presented to the plaintiff earlier, it would have been of tremendous aid in resolving the controversy.
Accordingly, the court finds that the plaintiff did not intentionally fail to pay the child support called for in the judgment of dissolution. The motion for contempt is denied.
Further Orders
A. To the extent that the plaintiff has not complied with the other claims articulated in the defendant’s Motion for Contempt, the court orders that he comply within 30 days of the date hereof. In this regard, the court does not find that intentional disobedience of the court order attended any claimed previous noncompliance.
B. The arrearage, if any, remaining due for child support, shall be paid by the plaintiff within 30 days of the date hereof.
Defendant’s Request for Counsel Fees
The defendant’s requests for counsel fees is denied.
Clarance J. Jones, Judge
CT Page 8453-cb