Superior Court of Connecticut, Judicial District of New London, Norwich
Filed Date October 13, 2015
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO MODIFY
John L. Carbonneau, J.
Plaintiff, through counsel, filed a Motion to Modify Child Support (#128) on June 4, 2015. She had defendant served with this motion on June 17, 2015. Defendant's counsel filed three motions in opposition, a Motion to Dismiss (#129), a Motion to Strike (#130) and Motion for Attorneys Fees (#131). The court heard these motions on July 28, 2015, and the parties each filed briefs for the court's consideration at the end of August.
The court makes its findings by a preponderance of the evidence. The court assessed the credibility and demeanor of the witnesses. The court considered and assigned all due weight to the admitted exhibits. The court took judicial notice of and studied the entire court file. The court took into account the arguments and briefs of counsel. The court considered the parties' past and current sworn Financial Affidavits, Guidelines Worksheets and all applicable law.
These parties divorced in Pennsylvania on November 26, 2002. Their stipulated judgment called for each party to have " primary physical custody" of one of their two children: the girl with plaintiff mother and the boy with defendant father. The boy is more than six years older than the girl. The judgment did not address child support.
Defendant moved to Connecticut, and he properly registered the Pennsylvania judgment here on December 30, 2010 in order to seek an order of child support. Plaintiff lived in Delaware at the time, and she initially resisted Connecticut's jurisdiction over her. Despite this, the parties reached a negotiated settlement on June 27, 2011. They first agreed that the children would be represented by an attorney to address the concerns of Guile v. Guile, 196 Conn. 260, 492 A.2d 175 (1985). They stipulated in pertinent part that their prior arrangement would continue with plaintiff having primary custody of the girl and defendant the boy; that neither owed child support to the other at the time; that neither would pay child support to the other in the future and that unless custody changed, the obligations in the agreement were non-modifiable. Each would assume all costs and expenses for the child in their care, including those for post-majority education. If either party moved to modify or enforce the agreement despite the non-modification language, such a motion was to be filed in the home state of the non-moving party. The attorney for the minor child participated in the proceedings and urged the court to accept the agreement. The court finds that plaintiff had greater earnings than defendant at the time of the hearing and that, presumptively, she would have owed child support to defendant under Connecticut's Child Support Guidelines then in effect.
On June 27, 2011 the court first approved the parties' agreement for the appointment of the children's attorney and then made the parties' second agreement an order of the court. The court did not make any Guidelines findings on the record. Conn. Gen. § 46b-215b; Regs., Conn. State Agencies, 46b-215a-1 et seq.; Favrow v. Vargas, 231 Conn. 1, 647 A.2d 731 (1994); Kiniry v. Kiniry, 299 Conn. 308, 9 A.3d 708 (2010). No one pointed this out to the court. No one submitted a Child Support Guidelines Worksheet to the court. No one moved to reargue, reconsider or rectify the court's order. No one took an appeal. Now, having lived with the terms of the court's order for four years, plaintiff challenges its terms and validity.
In those four years, the parties' son attained his majority and became ineligible to receive child support. Defendant lived up to the terms of the court order to date and is paying for his son's education at Vanderbilt University without contribution from plaintiff. Her motion seeks to nullify aspects of the 2011 order and require defendant to pay child support for the minor daughter.
APPLICABLE LAW, DISCUSSION AND FURTHER FINDINGS
Plaintiff and her daughter now live in Nevada. They never lived in Connecticut. Defendant moved from Connecticut to Delaware years ago. The court finds, however, that the June 27, 2011 order of a Connecticut court is " controlling, " and therefore this state has continuing jurisdiction per Public Act 15-71, " An Act Adopting the Uniform Interstate Family Support Act of 2008" (" UIFSA") because the parties never consented to another state's jurisdiction, and no other state has asserted jurisdiction.
Lack of Guidelines Findings
Plaintiff asserts that the 2011 court's failure to make specific presumptive Child Support Guidelines findings renders the non-modification aspect of the ...