Favrow v. Vargas

• Decision Date: 16 August 1994
• Docket Number: 14892,Nos. 14891,s. 14891
• Citation: 647 A.2d 731,231 Conn. 1
• Court: Connecticut Supreme Court
• Parties: Lucy M. FAVROW v. Jacqueline VARGAS.

Page 731

647 A.2d 731

231 Conn. 1

Lucy M. FAVROW v. Jacqueline VARGAS.

Nos. 14891, 14892.

Supreme Court of Connecticut.

Argued May 3, 1994.

Decided Aug. 16, 1994.

Henry Marcus, Hartford, with whom, on the brief, was Richard E. Hayber, Higganum, for appellant in the first case (petitioner).

Rochelle Homelson, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Donald M. Longley, Asst. Atty. Gen., for appellant in the second case (State).

Lucy Potter, Hartford, for appellee in both cases (respondent).

Before PETERS, C.J., and CALLAHAN, BORDEN, KATZ and PALMER, JJ.

BORDEN, Associate Justice.

This appeal is the second chapter of the litigation regarding the child support guidelines (guidelines) ¹ that we addressed in Favrow v. Vargas, 222 Conn. 699, 610 A.2d 1267 (1992) (Favrow I ). In Favrow I, we reversed the order of the trial court, Kaplan, J., and remanded the case for a new hearing on the verified petition for support originally filed by the named petitioner, Lucy Favrow against the respondent, Jacqueline Vargas. Id., at 717, 610 A.2d 1267. At the behest of the second trial court, Barall, J., Vargas subsequently filed third party complaints against two other defendants, Ednardo Maldonado and Edwin Mercado. ² Favrow and the intervening petitioner, the state of Connecticut, ³ now appeal ⁴ from the judgment of the trial court, Barall, J., rendered after the hearing held following our remand.

Favrow claims that the trial court improperly deviated from the guidelines by: (1) failing to calculate a base guideline award from which possible deviations could be made; (2) considering the cost of supporting the respondent's oldest daughter within the deviation criterion of "needs of other dependents"; (3) considering certain expenses as meeting the deviation criterion of "extraordinary visitation expense"; (4) considering the respondent's rental expenses as meeting the deviation criterion of "other equitable factors"; (5) considering the income of Favrow, who is the legal guardian of two of the respondent's daughters, and the income of Favrow's husband; and (6) considering the respondent's expenses associated with providing a "safe haven" for the respondent's oldest daughter as meeting the deviation criterion of "other equitable factors." Favrow also claims that the trial court improperly modified the support obligation of Maldonado regarding one of the respondent's daughters who is in Favrow's custody. The state claims that the trial court improperly: (1) deviated from the guidelines; and (2) failed to find arrearages owed to the state and Favrow. We reverse the judgment of the trial court.

In May, 1991, Favrow originally brought this petition against the respondent for the support of Noemi Maldonado and Janet Mercado, the two younger daughters of the respondent. On July 16, 1991, the trial court, Kaplan, J., ordered the respondent to pay Favrow $7.50 per child per week as support, and declined to find an arrearage because Favrow had not made a previous formal demand for support. In Favrow I, we reversed that judgment because: (1) with respect to the support order, we concluded that the trial court had improperly deviated from the guidelines "solely on the basis of the noncustodial parent's actual living expenses"; id., at 715-16, 610 A.2d 1267; and (2) with respect to the arrearage, we concluded that the obligation of a parent to support her minor child "is ongoing, and does not require the trigger of a request by those persons who are shouldering that responsibility." Id., at 717, 610 A.2d 1267. We therefore ordered a new hearing on Favrow's petition; id.; which occasioned these proceedings.

In the hearings following our remand, Favrow requested an order of support in accordance with the guidelines, and denied that any deviation criteria applied. The respondent claimed the benefit of four deviation criteria: (1) the needs of another dependent, based upon the living expenses attributable to her oldest daughter, who was then living with her; (2) significant visitation expenses, based upon her need to continue satisfactory visitation with her two younger daughters; (3) other equitable factors, based upon (a) promises associated with a guardian and custodianship agreement, and (b) the large disparity between her income and that of Favrow. At the conclusion of the hearings, the state, which had intervened during the proceedings requested orders according to the guidelines and denied the applicability of any deviation criterion.

The record discloses the following facts. ⁵ The respondent has three minor children: Sarai Maldonado (Sarai), born March 6, 1977, and Jessica Noemi Maldonado (Noemi), born February 27, 1979, ⁶ during the respondent's marriage to Ednardo Maldonado (Maldonado), which ended in divorce in 1981; and Janet Mercado (Janet), born January 14, 1985, during her marriage in Puerto Rico to Edwin Mercado (Mercado), from whom she has been separated since 1986. Favrow is the sister of Mercado and is, therefore, the aunt of Janet, and also considers herself the aunt by marriage of Sarai and Noemi.

After the respondent and Mercado separated, the respondent returned to Puerto Rico with her three children. At that time she was abusing drugs and alcohol. The trial court found that in 1986, Favrow "had her employer, an attorney, prepare two documents entitled 'Guardianship and Custody Agreements' [sic] which provided that Jacqueline Vargas would turn over her children to Lucy Favrow and her husband, with the understanding that the Favrows would assume the care, custody, guardianship, support, maintenance, and education of the children. Jacqueline Vargas executed those documents on November 4, 1986 and Lucy Favrow and her husband took possession of the children shortly thereafter." ⁷

From November, 1986, to September, 1989, the three children lived with the Favrows without a legal guardianship having been established. In September, 1989, the Newington Probate Court removed the respondent, Maldonado and Mercado as guardians of the children, and appointed Favrow as their legal guardian, with rights of reasonable visitation in the respective parents. Meanwhile, in October, 1989, the respondent, having completed a drug rehabilitation program, returned from Puerto Rico to the United States and began to seek reconciliation with her children.

In February, 1991, Sarai left the Favrow home and was placed in the custody of the state department of children and youth services (DCYS). On August 28, 1991, Favrow's guardianship over Sarai was terminated at Favrow's request, and DCYS transferred custody of Sarai to the respondent. Sarai lived with the respondent until February 1, 1993, and with a foster family from that date until February 20, 1993. She then lived in New Jersey with an aunt, her father's sister. Since May 2, 1993, she has lived with her father in Connecticut. Favrow remains the guardian and custodian of Noemi and Janet.

Meanwhile, Favrow had also petitioned the Newington Probate Court to terminate the parental rights of the respondent and the two fathers on the basis of their consent to such termination. Subsequently, the Probate Court dismissed the petition because the consent had been withdrawn, and transferred the termination petition to the juvenile docket of the Superior Court. Favrow continued to press the petition on the basis of a lack of ongoing relationship between the children ⁸ and the parents, and the respondent sought to terminate Favrow's guardianship and custodial rights with respect to Noemi and Janet. In June, 1993, shortly before the conclusion of the trial court hearings in this matter, Favrow's petition for termination of the respondent's parental rights was denied, as was the respondent's petition to terminate Favrow's guardianship. As of that time, although Noemi and Janet continued to live with Favrow, the parties continued to litigate the issues of custody over and visitation with them.

In May, 1990, Favrow instituted support proceedings against Maldonado and Mercado. On May 30, 1990, the court, Steinberg, J., ordered: (1) Maldonado to pay $150 per week as support for Sarai and Noemi, and $25 per week toward an arrearage of $56,000; and (2) Mercado to pay $50 per week as support for Janet, and $25 per week toward an arrearage of $35,720. Both fathers were ordered to provide health insurance for their children. In February, 1992, in a proceeding before Family Support Magistrate Ginsberg, Maldonado's order was modified to $67 per week as support for one child and $26 per week toward the arrearage, for a total of $93 per week. Meanwhile, on April 15, 1991, the respondent began employment at Aetna Life and Casualty Company.

In the trial court proceedings that led to this appeal, the court found, upon the basis of the financial affidavits, that the parties had the following weekly net incomes: (1) $230 for the respondent; (2) $358 for Favrow, to which the trial court added her husband's weekly net income of $774, for a total of approximately $1132; (3) $231 for Maldonado; and (4) $265 for Mercado. The trial court also found that the application of the child support guidelines to this case would be inequitable or inappropriate on the basis of three deviation criteria: (1) "needs of other dependents"; (2) "significant visitation expenses"; and (3) "other equitable factors." In this connection, the trial court found the following facts.

The court found that in 1992, when Favrow obtained the modified order against Maldonado for $93 per week, that left Maldonado with only $136 per week, which under the guidelines left him with "no money for him to pay support for Sarai, who was then with [the respondent]." The court noted that neither Sarai nor the respondent had been notified of this action by the family support magistrate. The court in effect charged Favrow with responsibility for the fact that the amount of Maldonado's payment...