April 30, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
‘Tis the season for altering state laws to reform the doings of family courts. State legislatures are in session and, across the country, existing family laws are under siege. And well they might be. This case gives a good look at one statute and one absence of a statute that scream for amendment.
Donald and Margaret Robinson were married in 1993 and divorced in 2014. They had one set of triplets and another younger child, all of whom were teenagers at the time of the court proceedings detailed by the court of appeals.
In the original divorce decree, Margaret was given primary custody and Donald
The divorce was uncontested and the court incorporated by reference the parties’ separation agreement in its judgment of dissolution. That agreement provided that the parties were to share joint legal custody of their minor children, whose primary residence was to be with the plaintiff, while the defendant was to enjoy ‘‘liberal and unrestricted parental access.’’
Donald was ordered to pay Margaret $400 per week in child support and $1,000 per week in alimony. That’s $72,800 per year for the first year post-divorce. During the second year, he was to pay her $300 per week in child support, or $67,600 per year. In the third year, child support was to decrease to $200 per week, or $61,400 per year.
The three oldest children were nearing the age of 18 when Donald filed for a modification of the child support order. He based his motion on two facts – that three of the children now lived with him primarily and that the amount of alimony he paid should be included in Margaret’s income - and excluded from his income - for the purpose of calculating the amount of child support.
The trial court denied his motion, finding that the statute governing what is and what isn’t to be included in a child support recipient’s income doesn’t include alimony and that the three children’s having made his home their primary residence doesn’t constitute a change of circumstances that requires a downward modification of support.
As to the issue of alimony, the trial court was correct. The state law plainly states that the only alimony to be considered income to the receiving ex-spouse is that which comes from a non-party to the case. So, for example, if Jane receives alimony from her first husband, it’s to be counted as income to her in any subsequent divorce matter in which she receives child support.
Weirdly, the fact that Donald pays Margaret the very considerable sum of $52,000 per year is considered by Connecticut law as a nullity. It affects neither his income calculation nor hers for the purpose of paying or receiving child support. Amazing but true.
Needless to say, the state legislature indulged in a fantasy when it passed that law. The simple fact is that money is money regardless of the source. If you pay it, you no longer have it; if you receive it, you have more of it than you previously did. These are not difficult concepts. To pretend, as the law does, that a custodial parent who receives alimony payments is in some way no better off than one who doesn’t or than she was before receipt is obviously untrue. The law should deal in realities and not fantasies. That Connecticut law should be changed.
How the trial court managed to conclude that three of the children living primarily with Donald when before they’d lived with Margaret constituted a change in circumstances, but not one requiring modification of the child support order is, as the appellate court noted, “murky.”
The court did order that the primary residence of three of the four then minor children be changed so that it would be with the defendant, but found, nonetheless, that there was a shared physical custody arrangement.
In short, for the three oldest children, the parenting arrangement had flipped. Originally, Margaret and Donald had a “shared physical custody arrangement,” (they also had shared legal custody) with Margaret as the primary parent. Subsequently, they had a shared arrangement with Donald as the primary parent.
Logic suggests that, under those circumstances, child support should also be flipped except for the youngest child. Both parents’ incomes should be considered and an adjustment made for the fourth child, but, having done all that, Margaret should owe Donald child support.
But Donald didn’t ask for support, just a downward modification of what he owed. Astonishingly, the court not only denied his motion, but increased the amount he was required to pay.
The defendant’s motion for modification was, by its terms, grounded on the proposition that there had been a substantial change of circumstances because of the change of residence of three of the children. The court, which did not write a formal memorandum of decision but, rather, announced its decision on the record and issued brief written orders, appears to have reasoned that there had been a change of circumstances, but that the change did not equitably compel a departure from the prior agreement in the amount of child support to be paid. The court further based its ultimate decision on a finding that the child support guidelines provided for a presumptive payment of $221 per week, and an upward deviation to $300 per week was justified, at least in part, by a finding of shared physical custody and the inability of the plaintiff to provide appropriately unless she received the greater amount.
Two things. First, notice that the trial judge didn’t write a formal memorandum. He/she simply issued orders and let it go at that. As such, the court of appeals had to guess at what was done and why. Hence its use of the word “murky” to describe the trial court’s actions.
One of the more overlooked changes to family law that advocates seek is to require judges to explain their findings in writing. That doesn’t seem terribly important, but it is. The Robinson case makes that clear. The trial court judge seems to have had a pro-maternal bias and acted on it and, under Connecticut law, no one will reverse his/her decision. That’s in large part because no one can know its basis because he/she isn’t required to explain it.
Then there’s that even stranger matter, “the inability of the plaintiff to provide appropriately unless she received the greater amount.” Huh? Here’s a woman who’s receiving $52,000 per year in alimony plus $221 per week in child support (a total of $63,492 per year), but, according to the judge, she can’t “provide appropriately” unless she receives $79 per week more. That’s simply not believable. But again, no explanation is necessary.
Interestingly, there’s no mention made of any employment Margaret may have or income she receives. Does she have a job? If so, how much does she earn? If not, why not? If not, why didn’t the court impute income to her?
Whatever the case, Connecticut law needs to be changed to require trial courts to make written findings of fact in every child custody case that deviates from shared parenting of the children and from the child support guidelines.
There’s little the court of appeals could do to reverse this travesty for the very reason that the trial court was free to do pretty much what he/she wanted and let whoever wants to try to figure out the justifications.
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Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.