604 A.2d 836 | Conn. Super. Ct. | 1992
The respondent brings this appeal from the magistrate's decision of April 3, 1991, finding an arrearage in support payments and entering ordering payment of current support as well as the arrearage. Appellate proceedings such as these are governed General Statutes. §
On February 23, 1990, the state of commissioner of human resources brought suit against the respondent, Henry Bridgeforth, to establish paternity of a child, Sonia Yrayta, born December 17, 1983. On April 3, 1991, the respondent admitted paternity of Yrayta before the court. The respondent has been incarcerated at the state correctional institute in Somers, since 1986. After argument and evidence, the family court magistrate found an arrearage of child support in the amount of $43 per week for 210 weeks, totaling $9030. The magistrate ordered the respondent to pay $45 per week current support and $5 per week on the *127 arrearage. The orders were based on evidence of income from the respondent's employment prior to his incarceration. The child support guidelines issued pursuant to Public Act 1989, No. 89-203 establish a level of child support based on the actual income of the payor or payee. Provision is made for deviation from the guidelines, however, "where such income is reduced due to voluntary unemployment or underemployment without good cause." Final Report of the Commission for Child Support Guidelines, 1991, p. 6 § (c) (7). The respondent has appealed the magistrate's decision.
The court held a hearing on June 20, 1991, at which the court found the respondent to be aggrieved. The parties further stipulated that the respondent, at the time of his incarceration, had no assets other than his wages, which at the time provided him with disposable income of $180. It was further stipulated that the respondent was incarcerated for a criminal conviction unrelated to support.
The issue before the court is whether the order of the magistrate, finding that the guidelines were rebutted by a finding of ability to pay as based upon the respondent's income prior to incarceration, is correct as a matter of law. See Child Support Guidelines, effective March 1, 1991, § (a)(3)(B), p. 8.
As previously noted, the guidelines provide for deviation when the actual income is reduced due to voluntary unemployment or underemployment without good cause.
In support of its claim the state cites Collier v. Jennings, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 601172 (December 30, 1987) (Lifshitz F.S.M.), a case from the family support magistrate division, in which the respondent requested a modification of the arrearage due based upon his inability *128 to make payments while incarcerated for a conviction unrelated to support. His request was denied because of the prohibition against retroactive modification of arrearages. Collier observes that there is no reported case in Connecticut as to whether support orders should be abated during such an incarceration unrelated to support.
State courts have differed as to whether an existing support order should be modified as a result of incarceration unrelated to support. It must be conceded that the compensation to the respondent is below the amount calculated under the guidelines.
Several courts have adopted the theory that any individual who engages in criminal or otherwise irresponsible behavior, does so at his peril, and cannot be heard to claim that his reduction in means was not his own fault. Ohler v. Ohler,
Other courts have approved a modification while the respondent is incarcerated. In Matter of Marriage of Edmonds,
All of the foregoing cases involved modifications of orders in existence at the time of incarceration. Foster v. Foster,
Foster v. Foster, supra, appears to be the only reported case where a support order was entered after incarceration. The court agrees with Foster and its reliance on the holding in Matter of Marriage of Edmonds, supra.
The decision of the magistrate is modified to the extent that any obligation for support or for arrearage is suspended nunc pro tunc from the date of incarceration to the date of the respondent's release, and the matter is remanded to the magistrate to recalculate any arrearage due prior to the date of incarceration.