Survey of 1989 Developments in Connecticut Family Law
| Publication year | 2021 |
| Pages | 81 |
64 CBJ 81. SURVEY OF 1989 DEVELOPMENTS IN CONNECTICUT FAMILY LAW
1989 was a year of substantial change in Connecticut family law. The Child Support Guidelines became presumptive, mandating that judges and practitioners alter their approaches to child support determinations. Significant Supreme and Appellate Court decisions dealt with many areas, including the consideration, enforcement, and modification of college expense obligations, cohabitation, child custody jurisdiction and attorneys' fees. Both Courts took, for the most part, an active role in shaping family law.
A. Child Support
1. Child Support Guidelines
The long awaited, feared by some, welcomed by others, child support guidelines, became presumptive on October 1, 1989. (fn1) It will be recalled that in 1985 the Connecticut Legislature established a commission to develop guidelines for child support awards within Connecticut.(fn2)The guidelines were originally "promulgated" on May 4,1987,(fn3) and were intended to be "available but not binding upon judges and other officials who have the power to determine child support awards. (fn4)
As a result of the 1989 act, there is now "a rebuttable presumption that the amount of [child support] awards which resulted [sic] from the application of such guidelines is the amount of support to be ordered."(fn5) Nonetheless, the guidelines are not intended to preclude consideration of other factors. The 1989 act specifically states that "the child support guidelines shall be considered in addition to and not in lieu of the criteria for such
awards established" in the various child support statutes.(fn6) Thus, the guidelines themselves list the following factors to be considered in determining child support
1. The assets and unique needs of each party,
2. The present and potential earning capacity of each party,
3. The division of jointly held property, assets and debts,
4. The value of, and income producing capacity of solely held assets including retirement and deferred income plans,
5. Special needs of children to be supported by either party,
6. Alimony,
7. The eligibility of either of the parties for support under Chapters 302 and 308, Connecticut General Statutes,
8. The amount of public assistance which would be provided to the care-providing adult or the child,
9. The needs of other dependents,
10. Un-reimbursable medical costs,
11. The age and health of the children and parents,
12. Needs of a second or prior family, and
13. Other reasonable considerations. (fn7)
The various statutes on child support, however, are inconsistent. The child support in dissolution of marriage statute,(fn8) for example, does not expressly include the division of property and debts, un-reimbursable medical costs, needs of other dependents, needs of a second or prior family, or other reasonable considerations. The paternity statute(fn9) does not list any factors at all, but instead obligates the father to pay the child's "support and maintenance" with the assistance of the mother if she is financially able. Did the Legislature, in enacting P.A. 89-203, intend that all determinations of support, whether incident to dissolution of marriage, paternity, or otherwise, are to be made based upon the same criteria?
The guidelines are net income based. Neither the needs of the children nor of their parents are factored into the guidelines' schedules. Nor are any other factors part of the calculation, except the number and ages of the children.
The practitioner is admonished that these are only intended to be guidelines. The guidelines are not to be mechanistically
applied, and the amount of support determined under the guidelines' schedules should not be blindly accepted Advocacy and discretion are still permissible and encouraged Courts are still obligated to consider the other provisions of the Connecticut General Statutes and of the guidelines themselves.(fn10)
The guidelines recognize that the parties' income should not be taken for granted. Gross income is expansively defined.(fn11) Disposable income is distinguished from weekly net pay.(fn12) Special considerations concerning income are noted including:
1. Voluntary reduction in income,
2. Seasonal employment, and
3. Income potential.(fn13)
The guidelines include a schedule which sets forth the child support presumptively payable at various disposable income levels depending upon the number and ages of the children.(fn14) The schedule only specifically includes combined weekly disposable income of the parents of up to $750 per week. The guidelines do not state that extrapolating to higher income levels is encouraged or discouraged, although the percentages that child support bears to income are set forth and would make it easy to extrapolate.
Judges, as would be expected, vary. Some judges routinely disregard the guidelines when the combined disposable income exceeds $750 per week. Some extrapolate and apply the percentages contained in the guidelines' schedule to higher income. Some use the amount payable based on $750 weekly income as a base and use discretion above that.
That it is unclear whether, or how, to apply the guidelines' schedule in cases where weekly disposable income exceeds $750 is but the most obvious problem 'with the guidelines. A more significant concern is that the guidelines' computation does not meet a stated purpose, i.e., consideration of both parents' income.
Although the support guidelines' worksheet(fn15) contains columns for the income, deductions, and "exemptions"(fn16) of each parent, consideration of the custodial parent's income is mathematically superfluous. The non-custodial parent's child support obligation under the guidelines schedule does not change no matter what the custodial parent's income.(fn17)
Similarly, the guidelines are not tax sensitive. They ignore the availability of unallocated orders which, in many cases, can increase the parties' combined disposable income and result in more income available to support the child. The guidelines also suggest that alimony be computed after child support. This presents the paradox of a non-custodial parent paying child support based upon a weekly disposable income that doesn't exist. In other words, the alimony payments will reduce the non-custodial parent's weekly disposable income, but under the guidelines' worksheet, child support will be determined as if no alimony were paid.
A reasonably competent practitioner and a reasonably competent judge can justify a variance from or disregard of the amount of support determined under the guidelines' schedule in almost every case. Courts and practitioners are reminded, however, that "[a] specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case ... shall be sufficient to rebut the presumption in such case."(fn18) As a result, practitioners must be prepared in all settled cases where the resolution is not consistent with the guidelines' schedule to advocate to the court a reason why the guidelines should be varied from or disregarded. A reason could be weekly disposable income of more than $750, a two-earner family, tax considerations, any of the criteria contained in the guidelines, or any of the criteria contained in the governing child support statute.
Some practitioners, however, feel that advocating that the guidelines' schedule not apply in a given case is "anti-child." That
is not the case. Only decision-making that points out and reacts to the problems with the guidelines will spur the recently created review committee to improve the guidelines so they better achieve the laudable purpose for which they were created:
[T]o 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.(fn19)
2. Needs Plus
In Main v. Main,(fn20) the Appellate Court concluded that the trial court abused its discretion in making an order of child support. An order for support of minor children "is not based solely on the needs of the children, but takes into account what the parents can afford to pay."(fn21) In Main, the father was granted custody of the minor child. The mother had weekly income of $1,410 from real estate commissions. The father had weekly income of $224 from unemployment compensation.(fn22) The trial court ordered the mother to pay the father $25 per week as child support and to furnish medical insurance for the child. According to the Appellate Court, the "award of $25 per week is highly disproportionate to the plaintiff's weekly earnings of $1,410, and accordingly, we conclude that this is one of those rare cases in which the trial court abused its broad discretion."(fn23) Main is indeed rare. It is the only Appellate or Supreme Court decision which reverses a financial award merely because the trial court did not award enough.
Main was decided before the child support guidelines became presumptive. Like the guidelines themselves, it does not address the question of "how high is up" when it comes to the determination of child support. The child support incident to dissolution of marriage statute requires that the court take into account a number of factors, including, but not limited to, the respective abilities of both parents, the needs of the child, and the
"station" of not only the parents but also the child.(fn24) When a parent earns one million dollars a year, what is or should be the "station" of the child? What if...
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