2010 Ct. Sup. 7756
No. FA-07-4007690-SConnecticut Superior Court Judicial District of Middlesex at Middletown
April 6, 2010
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR MODTFICATION POSTJUDGMENT
ELPEDIO VITALE, J.
A hearing on the defendant’s Motion for Modification (postjudgment) filed on March 8, 2010, was held on March 29, 2010. The plaintiff and the defendant testified at the hearing. Each party submitted updated financial affidavits. At issue is the agreement of the parties, filed on October 23, 2008 and made an order of the court (Calmar, J.). The judgment of dissolution entered that day required the defendant to pay to the plaintiff alimony in the sum of $1.00 per year, which shall be modifiable only in the event the defendant failed to pay one-half of the GMAC car loan and credit card debt. The defendant was further ordered to pay the plaintiff the sum of $92.00 per week in child support, and 40% of child care expenses. In addition, the defendant was ordered to pay the arrearage due in accordance with a pendente lite agreement dated August 4, 2008. The parties share any un-reimbursed medical expenses, with the defendant paying 40% of said expenses. Pursuant to the August 4, 2008 agreement the defendant was to pay $10.00 a week toward the child support arrearages $34 per week for the child care arrearage.
The defendant claims that his employment as a “day laborer” is sporadic and has been affected by the current economic climate. He therefore seeks a modification of the “child support” orders. He is also ineligible to receive the unemployment compensation benefits. In reaching its conclusions, the court has fairly and impartially considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.
“To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that is would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a CT Page 7757 party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order.” Borkowski v. Borkowski, 228 Conn. 729, 737-38, (1994).
The court finds the defendant’s employment status to be a substantial change in circumstances. The plaintiff has essentially indicated that she has no objection to a modification and simply requests that the defendant remain current on his obligation. The defendant is actively seeking employment. “Child support may be based on earning capacity rather than actual earned income of the parties. Bleur v. Bleur, 59 Conn.App. 167, 170 (2000).” It is well settled that “earning capacity 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 vocational skills, employability, age and health.” Id. at 171.
The court finds that, based on the evidence presented at each hearing of this matter, that the defendant did not wilfully diminish his earnings. “Loss of employment does not warrant modification unless the moving party also proves that the party’s earning capacity has changed substantially.” Berry v. Berry, 88 Conn.App. 674, 685 (2005). While the court may fashion financial orders based on earning capacity where a party has been unemployed, there must be a reasonable basis in the record to support a conclusion as to capacity. Boyne v. Boyne, 112 Conn.App. 279
(2009).
Based on the evidence presented, the relevant statutory criteria and case law, the court concludes that there is a sufficient basis in the record for the court to fashion an award based solely on earning capacity, although the nature of the defendant’s past employment and current economic conditions have impacted his present earning capacity. The court finds that capacity to be $100 per week. His only source of income at the moment is as a day laborer. The child support guidelines require the court to determine each party’s actual current gross and net income, and using those figures, determine the presumptive current support amount. See Regs. Conn. State Agencies § 46b-2a(c) and (d). After consideration of the relevant statutory criteria, the evidence, case law, and financial affidavits of the parties, the court enters the following orders:
1. A substantial change in circumstances exists. The October 23, 2008 award of child support is modified as follows:
a. The defendant is ordered to pay $10.00 per week in current child support, pursuant to the Child Support Guidelines. The ratios with regard CT Page 7758 to un-reimbursed medical expenses are modified to 27 percent defendant and 73 percent plaintiff.
b. On March 10, 2008, the court found the child support arrearage to be $2,576.00. From that date forward, the court finds an additional arrearage of $8,058.00, for a total of $10,634.00. On March 29, 2010, in court, the defendant paid $2,000.00 toward the arrearage, leaving a balance of child support arrearage of $8,634.00. This sum does not include any claimed arrearage on child care expenses, for which the plaintiff failed to furnish documentation. The defendant shall pay $10.00 a week toward the child support arrearage.
2. The defendant is ordered to contact at least five prospective employers per day regarding employment opportunities. The defendant is ordered to maintain documentary evidence of said contacts to be provided at any subsequent hearing of this matter, and in addition, to forward copies of same to the plaintiff every two weeks.
3. In the event that the defendant obtains employment, he shall no later than the following day after receipt of employment notify the plaintiff as to said circumstance, and his hourly salary.
Based on the foregoing, the Motion to Modify Child Support is granted.
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