Favrow v. Vargas

• Decision Date: 07 July 1992
• Docket Number: No. 14432,14432
• Citation: 222 Conn. 699,610 A.2d 1267
• Court: Connecticut Supreme Court
• Parties: Lucy M. FAVROW v. Jacqueline VARGAS.

Page 1267

610 A.2d 1267

222 Conn. 699

Lucy M. FAVROW v. Jacqueline VARGAS.

No. 14432.

Supreme Court of Connecticut.

Argued March 24, 1992.

Decided July 7, 1992.

Berdon, J., concurred in result.

Henry D. Marcus, Hartford, for appellant (petitioner).

Jacqueline A. Wilson, Rocky Hill, for appellee (respondent).

Richard Blumenthal, Atty. Gen., and Rochelle Homelson, Asst. Atty. Gen., filed a brief for the State of Conn. as amicus curiae.

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

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 ¹ solely on the basis of the noncustodial parent's actual living expenses. The petitioner, Lucy M. Favrow, appeals ² from the order of the trial court directing the respondent, Jacqueline Vargas, to pay the petitioner $7.50 per week in current child support for each of two minor children of the respondent, and denying the petitioner's request for a finding of and order on an arrearage for past child support. The petitioner claims that the trial court improperly (1) deviated from the guidelines, and (2) denied her request for an arrearage order. We reverse the order on both issues, and remand the case for a new hearing.

The relevant facts are as follows. The petitioner is the legal guardian of two of the respondent's minor children, Noemi Maldonado, born February 27, 1979, and Janet Mercado, born January 14, 1985 (children), who reside with the petitioner and her husband. ³ These children were born to the respondent during her marriages to their fathers, Eduardo Maldonado and Edwin Mercado, respectively.

In May, 1991, the petitioner filed verified petitions for support pursuant to General Statutes § 46b-215, ⁴ alleging that the respondent had "failed, neglected and refused" to support the children, and requesting an order of support and a finding of and an order on an arrearage. At the hearing on the petition, held on July 16, 1991, the parties filed financial affidavits and presented oral argument.

The respondent's affidavit indicated that she was employed at an insurance company, that she had a gross weekly income of $261.51, and a net weekly income of $212.10 after deductions for federal income taxes and social security. Her affidavit also indicated total weekly expenses of $295.75, consisting of $133.75 for rent, $7.50 for electricity, $50 for telephone, $60 for food, $3 for public transportation, $10 for laundry, and $31.50 for church contributions.

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. ⁵ The respondent argued that the guidelines should not apply, ⁶ and that a total weekly payment of $50 for the children was appropriate.

With regard to the arrearage sought by the petitioner, ⁷ the respondent represented that, following her participation in an alcohol rehabilitation program, she had begun working full time in May, 1991. She argued, nonetheless, that because the petitioner had not previously moved in court for a support order, there had been no neglect or refusal by the respondent to furnish support for the children, and thus that the petitioner had established no statutory basis for an order of arrearage.

The trial court found that application of the guidelines would be inequitable or inappropriate. Its stated rationale for that finding was the "[respondent's] living costs." ⁸ After eliminating certain of the respondent's expenses as shown on her affidavit, the court entered an order of current support of $7.50 per week for each child, or a total weekly order of $15. The court denied the petitioner's claim for an arrearage upon the basis that, because the respondent "was never formally notified of any demand being made on her prior to this action being commenced ... [t]he Court will not make a finding that she neglected or refused to provide support for the children." This appeal followed.

I

We first consider the petitioner's challenge to the trial court's order of current child support. The petitioner ⁹ claims that the trial court improperly deviated from the child support guidelines for reasons not articulated or contemplated by the guidelines. Conversely, the respondent claims that the trial court was within its discretion because it properly found that application of the guidelines would have been inequitable and inappropriate in this case. We agree with 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. ¹⁰ Special Acts 1984, No. 84-74, § 1. The special act had two major goals: (1) to "[e]stablish pilot programs at the two court locations for the mediation of contested child custody, visitation, property and financial issues related to dissolution of marriage proceedings"; and (2) "[a]ppointment of an inter-agency commission to develop family support guidelines to be used by Family Relations Counselors in the mediation of dissolution proceedings in the two Judicial Districts." ¹¹ Report of the Commission on Family Support Guidelines, Guidelines for Support Standards (October, 1985) p. 1 (1985 Guidelines). Thus, these guidelines were specifically for the use of family relations counselors in mediating and conciliating disputes and were not aimed at the discretion of the court in entering such orders.

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 dependent spouse or child being the primary obligation. In appropriate circumstances, however, fixed obligations may be considered." 1985 Guidelines, p. 2. The commission also stated that the guidelines were not intended to preclude consideration of thirteen "other factors relevant to the allocation of financial responsibility," the last listed of which was "[o]ther reasonable considerations." ¹² 1985 Guidelines, pp. 2, 3.

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 non-custodial 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, these two provisions established as a baseline that, within the boundaries of the flexible and nondirective approach of the guidelines, the noncustodial parent would be permitted to retain the greater of 40 percent of his or her other disposable income or $100 per week.

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...