222 Conn. 699 | Conn. | 1992
The principal issue in this appeal is whether a trial court may properly order a deviation from the child support guidelines promulgated pursuant to General Statutes § 46b-215b
In May, 1991, the petitioner filed verified petitions for support pursuant to General Statutes § 46b-215,
The petitioner’s affidavit indicated that she was employed as a legal secretary, and that she had a gross weekly income of $600, and a net weekly income of $473.10 after deductions for federal income taxes, social security and medicare. Her affidavit also disclosed her husband’s gross weekly income of $1127.17 and his net weekly income of $773.61 after deductions for federal income taxes, social security, medicare, various insurance expenses, and savings bonds and charities. The petitioner’s affidavit also indicated total weekly expenses for both her and her husband of $1396.97. That figure included $373.14 in weekly payments on credit card and similar debts totaling $29,236.83.
The petitioner requested that the trial court order current support in the total amount of $75 per week for the children, which was in accordance with the guidelines.
With regard to the arrearage sought by the petitioner,
The trial court found that application of the guidelines would be inequitable or inappropriate. Its stated rationale for that finding was the “[respondent’s] liv
I
We first consider the petitioner’s challenge to the trial court’s order of current child support. The petitioner
Some history is in order. In 1984, by Special Act No. 84-74 the legislature established pilot programs of mediation and conciliation in the Fairfield and Litchfield judicial districts.
Pursuant to that statutory mandate, the commission appointed thereunder developed a set of guidelines for support of minor children “based on expected levels of support to be provided by a spouse or parent depending on the income and current situation of each adult, total family income, and the number of persons in need of support.” 1985 Guidelines, p. 2. The commission specifically made the guidelines flexible and nondirective. The commission stated that the guidelines “reflect an integration of national averages for the costs of child rearing in families of varying size and income levels as well as the usual range of obligations established by families and the courts. They are not intended to transform the sensitive process of determining the equitable allocation of family support responsibilities into a fixed and rigid mathematical formula. Rather, the purpose is to provide a framework within which the unique characteristics of each family can be examined in an orderly fashion to construct an allocation of financial responsibility responsive to the needs of all family members as well as to the community.” 1985 Guidelines, pp. 1-2. In keeping with this flexible and nondirective approach, the commission also stated: “In most situations, support obligations are not dependent upon current adult expenses as it is anticipated that parents must adjust their expenses in accordance with the priority of their obligations, with the support of a depen
Two provisions of these guidelines are relevant to the issue in this case. The provision entitled “Maximum Family Support” stated that the “guidelines intend that the spousal support determination occur within the context of the disposable income of the non-custodial parent after the child support obligation is established and with the proviso that the retained income of the noncustodial parent in no case be reduced to below 40%, or $100.00, whichever is greater, for any combination of child support and spousal support. The amount of disposable income available for spousal support is the difference between the expected child support and the Maximum Family Support.” (Emphasis in original.) 1985 Guidelines, p. 5. The provision entitled “Limit On Maximum Support To Be Ordered” provided as follows: “The guidelines presume that as a rule the retained income of the support obligor will not be reduced below 40%, or $100.00, whichever is greater. The rationale for this proviso is that reduction below 40%, or $100.00, may have the effect of undermining an obligor’s incentive to remain employed.” 1985 Guidelines, p. 6. Thus,
The commission also recommended that the proposed guidelines be used statewide by family relations counselors as part of the mediation process. 1985 Guidelines, Pilot Program Report and Recommendations addendum, p. 2. In a further addendum to the report, the mediators appointed under the statute recommended that the guidelines “be formally incorporated as guidelines to be considered by judges in the adjudication of family support matters.” 1985 Guidelines, Commentary addendum, p. 4.
Thereafter, in 1985 the legislature enacted No. 85-548 of the Public Acts, entitled “An Act Implementing the Federal Child Support Enforcement Amendments of 1984.”
In 1989, the legislature enacted No. 89-203 of the Public Acts, entitled “An Act Concerning Child Support Guidelines.”
Section 46b-215b (a) made four significant changes in the application of the guidelines to questions of child support. These four changes, moreover, displaced the flexible and nondirective approach taken by the previous sets of guidelines. First, § 46b-215b (a) provides that the guidelines “shall be considered in all determinations of child support amounts within the state.” Second, the statute provides that “there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered.” Third, in order for a court or magistrate “to rebut the presumption in such case,” it must make a “specific finding on the record that the application of the guidelines would be
In response to these statutory mandates, the commission promulgated new guidelines. In its final report, issued in January, 1991, the commission observed that the new guidelines “have been working quite well since they have been used as a rebuttable presumption by judges and magistrates. The order establishment process has been expedited; and although there has been some inconsistent application, orders of support are generally more consistent. Generally, there is less litigation, and much more thought is being given to the reasons for deviation from the guidelines.” Final Report of the Commission for Child Support Guidelines (January, 1991) p. 3 (1991 Guidelines).
With respect to the deviation criteria mandated by § 46b-215b (a), the commission found that the “deviation criteria should be more clearly specified. The guidelines therefore include a complete listing of specific deviation criteria. In addition, the Commission has expanded the general criteria to ensure that orders are in the best interests of the child and are equitable to the financial interests and needs of the parties.” 1991 Guidelines, p. 3. Accordingly, the commission specified fourteen deviation criteria, the last of which, relevant here, was “other equitable factors.”
The commission, moreover, specifically addressed the issue of the noncustodial parent’s actual living
This history strongly suggests three conclusions. First, underlying the entire notion of the mandatory child support guidelines is the fundamental principle that, unless a specific deviation criterion applies, “support obligations should not be dependent on current adult expenses because parents must adjust their expenses in accordance with the priority of their obligations, with the support of dependents being a primary obligation.” 1991 Guidelines, p. 4. Although this principle was specifically stated in the 1991 Guidelines mandated by the 1989 legislation, its applicability was evident even in the context of the precursor legislation.
Second, the deviation criteria must be read so as to be consistent with this fundamental principle. Just as different statutes must be read so as to form a consistent whole; 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 265, 541 A.2d 478 (1988); the deviation criteria must be read, insofar as possible, so as to form a consistent whole with the guidelines, both of which were issued by the same commission.
Third, the guidelines evolved from an experimental, intentionally nondirective and flexible approach to the imposition of standards that are presumptively binding on the court or magistrate, from which deviations would be permitted only in accordance with specific findings related to specific criteria established by the commission. Thus, in general, the 1989 legislation and the ensuing work of the commission substantially circumscribes the traditionally broad judicial discretion of the court in matters of child support.
These conclusions lead us to conclude, further, that the trial court went beyond its permissible bounds in deviating from the guidelines in this case. The only deviation criterion at issue in this case is the fourteenth, namely, “other equitable factors.” The trial court did not rely on any other criterion, and the respondent does not argue for the applicability of any other. It is true that the language of that criterion is very broad and would, at first glance, appear to give the trial court almost as much discretion as it had before the promulgation of the guidelines. To read this criterion, however, so as to permit the court to deviate from the guidelines solely on the basis of the noncustodial par
Permitting such an application of the deviation criteria would be inconsistent with the fundamental principle underlying the guidelines, namely, that support obligations of parents should not be dependent upon their current living expenses but that those expenses must give way to support obligations. Furthermore, to give precedence to current living expenses would be to read the catch-all, fourteenth deviation criterion so as to be inconsistent with and, in effect, to govern the application of the guidelines themselves. Finally, to do so would be inconsistent with the circumscribed discretion that the guidelines have imposed on the trial court by the 1989 legislation that replaced the broad discretion that the trial court had in such matters before the promulgation of the guidelines. In sum, therefore, in the present case the trial court’s order finding a deviation from the guidelines on the basis of the respondent’s actual living expenses amounted to a disagreement with the guidelines themselves, rather than an application of the deviation criteria established by the commission.
We recognize that, particularly at the lowest end of the financial spectrum as reflected in the guidelines, the amount left for the noncustodial parent’s self-support reserve may well be penurious, if not inadequate.
II
The petitioner also claims that the trial court improperly denied her request for an arrearage order because there had been no formal demand made upon the respondent for support prior to this petition. We agree.
General Statutes § 46b-215 provides in pertinent part: “The superior court or a family support magistrate shall have authority to make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to . . . a child under the age of eighteen, according to his or her ability to furnish such support . . . .” (Emphasis added.) There is nothing in this language, or in the important public policy that it reflects, to suggest that the obligation of a parent to support her child, according to her ability, is subject to a condition precedent of a formal demand. That obligation is ongoing, and does not require the trigger of a request by those persons who are shouldering that responsibility.
The order is reversed, and the case is remanded for a new hearing on the petition.
In this opinion Peters, C. J., Callahan and Glass, Js., concurred.
Berdon, J., concurring. I concur in the result.
General Statutes § 46b-215b provides: “guidelines to be used in DETERMINATION OF AMOUNT OF SUPPORT. PRESUMPTION, (a) The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.
“(b) In any proceeding for the establishment or modification of a child support award, the child support guidelines shall be considered in addition to and not in lieu of the criteria for such awards established in sections 46b-84, 46b-86, 46b-130, 46b-171, 46b-172, 46b-198, 46b-215, 17-324 and 17-578.”
The petitioner appealed from the order of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The petitioner is also the guardian of a third minor child of the respondent who is in the custody of the department of children and youth services and whose support is not at issue in this case. The petitioner’s husband is not a guardian of any of the respondent’s children.
General Statutes § 46b-215 provides: “relatives obliged to furnish support, when, orders, (a) The superior court or a family support magistrate shall have authority to make and enforce orders for payment of support against any person who neglects or refuses to furnish necessary support to his or her spouse or a child under the age of eighteen, according to his or her ability to furnish such support, notwithstanding the provisions of section 46b-37. Proceedings to obtain such orders of support shall be instituted by a verified petition with summons and order, in a form approved by the chief court administrator, of the husband or wife, child or any relative or the conservator, guardian or support enforcement officer, town or state, or any selectmen or the public official charged with the administration of public assistance of the town, or in AFDC support cases, as defined in subdivision (15) of subsection (b) of section 46b-231, the commissioner of human resources, filed in the judicial district in which the petitioner or respondent resides or does business, or if filed in the family support magistrate division, in the judicial district in which the petitioner or respondent resides or does business. For purposes of this section, the term ‘child’ shall include one bom out of wedlock whose father has acknowledged in writing his paternity of such child or has been adjudged the father by a court of competent jurisdiction, or a child who was bom before marriage whose parents afterwards intermarry. Said court or family support magistrate shall also have authority to make and enforce orders directed to the conservator or guardian of any person, or payee of social security or other benefits to which such person is entitled, to the extent of the income or estate held by such fiduciary or payee in any such capacity. Said court or family support magistrate shall also have authority to determine, order and enforce payment of any sums due under a written agreement to support against the person liable for such support under such agreement. Said court or family support magistrate shall also have authority to determine, order and enforce
“(b) The attorney general of the state of Connecticut and the attorney representing a town, shall become a party for the interest of the state of Connecticut and such town, in any proceedings for support which concerns any person who is receiving or has received public assistance or care from the state or any town. The attorney general shall represent the IV-D agency in non-AFDC IV-D support cases if the IV-D agency determines that such representation is required pursuant to guidelines issued by the commissioner of the department of human resources.
“(c) The court or a family support magistrate may direct all orders of support to be made through the support enforcement division and shall direct payments made under such orders to the commissioner of administrative services, with authority residing in the support enforcement division to enforce all orders directed for its supervision.
“(d) No order for support made by the court or a family support magistrate shall be stayed by an appeal but such order shall continue in effect until a determination is made thereon upon such appeal; if however as a result of such appeal or further hearing, the amount of such order is reduced or vacated, such defendant shall be credited or reimbursed accordingly.
“(e) Any court or family support magistrate, called upon to enforce a support order, shall insure that such order is reasonable in light of the obligor’s ability to pay. Any support order entered pursuant to this section, or any support order from another jurisdiction subject to enforcement by the state of Connecticut, may be modified by motion of the party seeking such modification upon a showing of a substantial change in the circumstances of either party or upon a showing that such support order 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, provided the court or family support magistrate finds that the obligor or the obligee and any other interested party have received actual notice of the pendency of such motion and of the time and place of the hearing on such motion. No such support orders
In response to questions from the trial court, the petitioner indicated that, although there were outstanding orders of support and wage executions against the fathers of the children, those orders had yielded only $14 in the previous seven weeks.
The respondent offered two bases for departing from the application of the guidelines: (1) since the petitioner’s affidavit indicated a high level of combined income for her and her husband and many weekly expenses— particularly the credit card liabilities—that, in the respondent’s view, “ha[d] nothing to do in the majority as regards the care and maintenance” of the children, the respondent “shouldn’t have to pay in order to maintain a living household and a style of living that she’s not a party to”; and (2) since the petitioner had become the guardian of the children when the respondent was an alcoholic and unfit to care for the children, and since the respondent had now turned her life around and was sober and working, she now wanted to reestablish her relationship with the children. She argued that application of the guidelines would cripple her attempt to rehabilitate herself and cripple her attempt to reunite with her children. In view of our conclusions that the trial court improperly employed the respondent’s actual living expenses as the sole basis for its decision to deviate from the guidelines and that a new hearing is required, we need not determine whether either of these bases would satisfy the deviation criteria established under General Statutes § 46b-215b.
The petitioner sought an arrearage in the amount of $17,940, calculated on the basis of her belief that the respondent had been employed for the previous one and one-half or two years. The petitioner also suggested an order on this arrearage of $25 per week. That amount, however, was to be included in the total weekly order sought of $75, to be allocated $50 for current support and $25 on the arrearage.
Although in its oral decision from the bench the trial court also adverted to three other factors—namely, (1) the absence of payments by the natural fathers of the children and the effect thereof on the respondent, (2) the presence of the “step-parent ... in the equation,” and (3) the court’s perception that the respondent’s offer of $50 per week would set her up for defeat when she was trying to rehabilitate herself and regain custody of her children—it is clear that the basis of its decision not to apply the guidelines was the fact that applying the guidelines would not leave the respondent with enough money for the basic necessities of living. In invoking the statutory exception to the guidelines, the court stated that “what the guidelines don’t always take into consideration is that shelter, food and utilities and clothing . . . are necessities of life. And before we get past necessities, we can’t start talking about the ability to support.” The court also stated that “the Commission members [who] . . . set up these guidelines . . . didn’t take into consideration that there is a basic necessity level that people have to get by before we start talking about discretionary income.” The court then concluded: “Therefore, I am going to make a finding in this case that the application of the guidelines in this case would be unfair and inappropriate.” Whatever slight ambiguity there may have been about the basis of the trial court’s decision, moreover, is completely dispelled by its written order, as follows: “(x) Order is outside Guidelines. Rationale: /Respondent’s] living costs. ” (Emphasis in original.)
Although the petitioner has phrased her claims on appeal somewhat differently than the state of Connecticut as amicus curiae has phrased the claims, we conclude that the phrasing of the claims of the amicus more accurately presents the issues. We therefore consider the claims of the amicus as those of the petitioner.
Special Acts 1984, No. 84-74, § 1, provides: “There shall be established in the judicial districts of Fairfield and Litchfield a pilot program of mediation and conciliation services for persons filing for dissolution in such judicial districts. Mediation and conciliation services shall include property, financial, custody and visitation counseling services as well as educational programs concerning custody and property issues, financial matters and dealing with children.”
Special Acts 1984, No. 84-74, § 2, provides: “There is established a commission consisting of three employees of the judicial department, appointed by the chief court administrator, two employees of the office of the attorney general, appointed by the attorney general and two employees of the department of human resources appointed by the commissioner of said department. The commission shall, not later than January 1,1986, develop for each judicial district offering mediation and conciliation services in dissolution proceedings, a guideline for support standards to be used by family relations counselors in the mediation of dissolution proceedings. Such guidelines shall reflect the financial assets and needs of each party, including but not limited to: The present and potential earning capacity of each party; the division of jointly held property and debts; the value of, and the income producing capacity of, solely held assets, including retirement and deferred
The first twelve factors included: the assets and unique needs of each party; the parties’ earnings capacities; the division of jointly held property, assets and debts; the value of retirements and deferred income plans; special needs of children; alimony; the eligibility of either party for support from the state pursuant to chapters 302 and 308 of the General Statutes; the amount of public assistance available to the custodial parent; the needs of other dependents; unreimbursable medical costs; the ages and health of the parties and children; and the needs of a second or prior family. 1985 Guidelines, pp. 2-3.
Number 85-548 of the 1985 Public Acts was enacted in response to federal legislation regarding support for children. “Since 1984, the United States Congress has actively encouraged states to take measures to assure that children receive adequate financial support from their parents, thereby reducing governmental expenditures for support of children. The Child Support Enforcement Amendments of 1984, enacted as Public Law 98-378 and codified at 42 U.S.C. § 666 et seq., amended part D of title IV of the Social Security Act to require that states establish procedures to improve the effectiveness of child support enforcement (IV-D) programs. In those amendments, Congress conditioned the states’ receipt of federal funds for AFDC programs and for IV-D programs upon compliance with these requirements. Among the requirements was a provision directing states to establish, by law or by judicial or administrative action, guidelines for child support award amounts that would be available to, but not binding upon, judges who had the authority to enter child support orders. 42 U.S.C. § 667 (a). Such guidelines were intended to provide reliable benchmarks for use in quasi-judicial proceedings, to expedite awards of child support, and to guide courts to more equitable awards in order to address the ‘feminization of poverty’ resulting from consistent underestimates of the cost of rearing children by increasing the average level of awards. See, e.g., R. D..Thompson & S. F. Paikin, ‘Formulas and Guidelines for Support,' 36 Juv. & Fam. Ct. J. 33 (1985).” Turner v. Turner, 219 Conn. 703, 713-14, 595 A.2d 297 (1991).
Number 85-548, § 8, of the 1985 Public Acts provides: “A commission consisting of three employees of the judicial department, appointed by the chief court administrator, two employees of the office of the attorney general, appointed by the attorney general and two employees of the department of human resources appointed by the commissioner of human resources shall be established to develop guidelines, not later than January 1, 1987, for child support award amounts within the state. Such guidelines shall be available but not binding upon judges and other officials who have the power to determine child support awards.”
Like No. 85-548 of the 1985 Public Acts, No. 89-203 of the 1989 Public Acts was enacted in response to federal legislation. “Four years [after the enactment of The Child Support Enforcement Amendments of 1984] . . . Congress enacted the Family Support Act of 1988 to increase the responsibility of the states to assist all families, including those who do not receive welfare assistance, to establish, modify and enforce support obligations. Public Law 100-485, codified at 42 U.S.C. § 666 et seq. Section 103 (a) of the 1988 act required the states to create a rebuttable presumption that the amounts recommended in the child support guidelines are the correct amounts to be awarded.” Turner v. Turner, 219 Conn. 703, 714, 595 A.2d 297 (1991).
General Statutes § 46b-215a provides: “commission foe child support guidelines, duties, members. The commission for child support guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than January 1,1991, and every four years thereafter. The commission shall consist of eleven members as follows: The chief court administrator or his designee, the commissioner of human resources or his designee, the attorney general or his designee, the chairpersons and ranking members of the joint standing committee on judiciary or their designees and a representative of the Connecticut Bar Association, a representative of legal services, a person who represents the financial concerns of child support obligors and a representative of the permanent commission on the status of women, all of whom shall be appointed by the governor. The chairperson of the commission shall be elected by the members of the commission.”
The first thirteen deviation criteria included: the substantial assets of a party; earning capacity of a party; division of property, assets and debts; special needs of the child; extraordinary educational expenses; alimony; needs of other dependents; extraordinary unreimbursable medical expenses; shared custody arrangements; tax consequences; significant visitation expenses; parental support available to a minor parent; and the best interests of the child. 1991 Guidelines, pp. 8-9.
The commission also specifically determined that where a minor noncustodial parent lives at home and is supported in part by his or her parents, the court should be permitted to deviate from the guidelines by leaving the parent with less than $135 per week. 1991 Guidelines, p. 5. Significantly, there was no corresponding specific determination that a finding of actual living expenses of the noncustodial parent amounting to more than $135 per week should by itself trigger a deviation from the guidelines.
We note, however, that in this ease the trial court, in ordering only $15 per week support for the two children, went below even what the respondent felt she could afford to pay, $50 per week.