Gorski v. McIsaac

• Decision Date: 31 March 2015
• Docket Number: No. 36446.,36446.
• Citation: 112 A.3d 201,156 Conn.App. 195
• Court: Connecticut Court of Appeals
• Parties: Diane GORSKI v. Stephen J. McISAAC.

156 Conn.App. 195

112 A.3d 201

Diane GORSKI

v.Stephen J. McISAAC.

No. 36446.

Appellate Court of Connecticut.

Argued Dec. 9, 2014.

Decided March 31, 2015.

Stephen J. McIsaac, self-represented, the appellant (defendant).

W. Anthony Stevens, Jr., with whom, on the brief, was Ronald T. Scott, Hartford, for the appellee (plaintiff).

GRUENDEL, SHELDON and MULLINS, Js.

Opinion

MULLINS, J.

We are called upon in this appeal to apply and interpret Massachusetts General Laws Chapter 208, § 28, concerning child support orders. The self-represented defendant, Stephen J. McIsaac, appeals from the judgment of the trial court, denying his amended postjudgment motion for a “modification of judgment.” In that motion, the defendant sought, inter alia, to have his child support obligation terminated. On appeal, the defendant claims that the trial court (1) improperly construed Massachusetts General Laws Chapter 208, § 28, and found that the child was domiciled with the plaintiff, Diane Gorski, and that the child was principally dependent on her, (2) improperly rejected his claim that the statute was unconstitutionally vague as applied to him, and (3) erroneously concluded that the child support garnishment order issued by the Massachusetts court did not violate federal law. We affirm the judgment of the trial court.

The following procedural history and findings made by the trial court are relevant to this appeal. The defendant and the plaintiff were divorced by a judgment of the Massachusetts Probate and Family Court on September 21, 1998. Under the terms of the judgment, the plaintiff was awarded sole legal and physical custody of the parties' only child, M, who was born on February 9, 1995. The judgment ordered the defendant to pay to the plaintiff $200 per week in child support for the unemancipated child,¹ and for the parties to share in the eventual cost of M's college expenses to the extent that they are able.

The Massachusetts court rendered judgments modifying the September 21, 1998 judgment on April 28 and September 22, 2000. The modifications in 2000 did not alter the support provisions of the divorce judgment. In the September 22, 2000 modification judgment, however, the Massachusetts court ruled that it would decline any further jurisdiction over M's custody or visitation because, by then, she had resided in Connecticut for well over one year. The plaintiff, on September 4, 2002, filed a certified copy of the Massachusetts dissolution judgment with our Superior Court in accordance with General Statutes § 46b–71.²

By the time the trial court rendered the relevant judgment in the present case, M had attained the age of nineteen, graduated from high school, and enrolled as a freshman at the University of Connecticut at the state resident tuition rate. The parties each agreed to pay 40 percent of M's college expenses, with M being responsible for the remaining 20 percent. Prior to moving into her dormitory, M had resided with the plaintiff in Glastonbury and had attended high school in Connecticut. M is not able to support herself.

The plaintiff maintains M on her health insurance, pays her unreimbursed medical expenses, gives her spending money and money for necessities while M is at school, allows M to drive her vehicle when she is at home, and pays the additional cost to have M on her automobile insurance. The plaintiff also coordinates M's medical care and appointments. M has a bedroom in the plaintiff's house, which contains whatever furnishings and items M did not take to her dormitory.

The defendant also provides spending money for M, buys her clothing and other items, and pays for her dining and entertainment expenses when she visits him in the Boston area. He also has purchased cell phones and a laptop for her over the years, and pays for the internet service on her cell phone. M relies on both parents for emotional support and other help.

On June 21, 2013, the defendant filed a “motion for modification of judgment,” and, on July 25, 2013, he filed an “amended motion for modification of judgment.”³ The defendant sought the termination of his $200 weekly child support payment on the ground that M had turned eighteen and had graduated from high school. Because he continued to make child support payments, via a wage garnishment, the defendant also sought the return of all monies he had given to the plaintiff after M graduated from high school. Additionally, in count two of his motion, the defendant requested that, if Massachusetts law applied to this case, his support order be terminated, and, to the extent that any support was ordered in this case, that the plaintiff be ordered to pay child support to the defendant because M “will be domiciled in the home of the defendant and will [be]/is principally dependent upon the defendant for maintenance.”

The court heard argument on the amended motion on November 15, 2013.

Following the hearing, the parties were given an opportunity to, and did, submit post-hearing briefs. The court issued a written memorandum of decision on January 7, 2014. In its decision, in accordance with Massachusetts General Laws Chapter 208, § 28, the court found that M was domiciled with the plaintiff and principally dependent on the plaintiff for maintenance. The court further found that Massachusetts General Laws Chapter 208, § 28, was not unconstitutional and, finally, that the original wage garnishment order did not violate federal law. As a result, the court denied the defendant's motion. This appeal followed. Both parties agree that Massachusetts law applies to this case. See General Statutes § 46b–71 (b).

I

The defendant first claims that the “plaintiff did not prove, by a preponderance of evidence, that she has met the statutory test [to receive child support] under Massachusetts General Laws Chapter 208, § 28.”⁴ In particular, he argues that “[i]n order for the plaintiff to be entitled to child support, [she] must [prove] that [M] is domiciled with her.” Additionally, the defendant claims that the “[p]laintiff did not prove that [M] is principally dependent on her....” We are not persuaded by either of these contentions.

First, we are not persuaded by the defendant's proposition that the plaintiff had the burden of proof in the amended motion for modification when the defendant was the party seeking to terminate his child support obligation in that motion. Second, we conclude the defendant has failed to prove that the court's findings that M was domiciled with the plaintiff and that M was principally dependent on the plaintiff were clearly erroneous.

“Massachusetts law provides support beyond age eighteen for any child (1) who has attained age eighteen but who has not attained age twenty-one and who is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance, or (2) who has attained age twenty-one but who has not attained age twenty-three, if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program....” (Internal quotation marks omitted.) Freddo v. Freddo, 83 Mass.App. 353, 356, 983 N.E.2d 1216, review denied, 465 Mass. 1104, 987 N.E.2d 596 (2013). In bringing a motion to modify a judgment for child support, the person seeking a modification bears the burden of demonstrating that a modification is warranted. See Pierce v. Pierce, 455 Mass. 286, 293, 916 N.E.2d 330 (2009) (“[t]o be successful in an action to modify a judgment for ... child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment” [internal quotation marks omitted] ); Kelley v. Kelley, 64 Mass.App. 733, 739, 835 N.E.2d 315 (“it has ... been held repeatedly ... that no modification can be made unless the party seeking modification shows a change of circumstances since the entry of the earlier judgment ” [emphasis in original; internal quotation marks omitted] ), review denied, 445 Mass. 1107, 838 N.E.2d 577 (2005).

Accordingly, the defendant, who was the movant in this case, bore the burden of establishing that M no longer was domiciled with the plaintiff or that M no longer was principally dependent on the plaintiff for maintenance. Nevertheless, regardless of who bore the burden before the trial court in this case, the court found, on the basis of the evidence presented, that M was domiciled with the plaintiff and that she was principally dependent on the plaintiff.

We read the defendant's claim to include a challenge to the court's findings concerning M's domicile and maintenance. In its memorandum of decision, the court specifically found: “[T]he domicile of [M] is with her mother in Glastonbury.... This has been [M's] home for many years, as she has been in the sole custody of her mother since the dissolution of the parties' marriage. It is the place she reported as her home when she registered as a student at the University of Connecticut. Although it may be her stated intention to reside primarily with her father in the future, that statement of future intention does not change her present domicile.”

With respect to whether M is principally dependent on the plaintiff for her maintenance, the court found that, although both parents contribute financially to M's education and support, “the contributions of the plaintiff, as a whole, continue to outweigh those of the defendant at this point in time.” The court elaborated: “The plaintiff has provided [M] with her principal home and the basic necessities of life, and continues to maintain a room for her in the family home during [M's] absences to attend college. She and the defendant pay equal shares of [M's] college costs.

She provides [M's] current health insurance and pays all of [M's] unreimbursed medical expenses. She pays the cost of [M's] automobile liability insurance and continues to provide [M] with a car to drive when she is home from college. The plaintiff provides [M...