Mingo v. Blake

Elizabeth Mingo v. Sadiki S. Blake

No. HHDFA154077658S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 22, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Michael A. Albis, J.

BACKGROUND

The defendant father, Sadiki Blake, has appealed a decision of the family support magistrate (hereinafter " FSM") dated March 19, 2015.^[1] On that date the FSM entered an order of child support payable by the defendant with respect to his minor child (Sadeem, born April 30, 2001) and made the order retroactive for a period of three years before the date of the hearing. The matter was originally brought in the Family Support Magistrate Court by way of a Uniform Support Petition dated June 11, 2014, initiated by the State of Florida on behalf of the plaintiff mother.

The defendant, who was present at the hearing, is incarcerated. Finding that the defendant had no current income, the FSM nevertheless entered orders of support on the basis of two pending personal injury claims in favor of the defendant with the emphasis on the larger claim.^[2] In doing so, the FSM relied on General Statutes § 46b-215e concerning support orders against incarcerated obligors, which provides as follows:

Sec. 46b-215e. Initial or modified support order where child support obligor is institutionalized or incarcerated . Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income and substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order.

The defendant has appealed from the FSM's decision to this court pursuant to General Statutes § 46b-231(n). The defendant argues that it was improper for the FSM to use a pending unliquidated personal injury claim as the basis for an order of current child support, and further that it was improper to make the order retroactive during a period of time when the defendant was unable to work and had not received any proceeds of the claims.

STANDARD OF REVIEW

This court's review of the decision of the FSM is governed by General Statutes § 46b-231(n), where the applicable standard of review is set forth in the following subsection:

(7) The Superior Court may affirm the decision of the family support magistrate or remand the case for further proceedings. The Superior Court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the decision of the family support magistrate is: (A) In violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

The court has considered the defendant's appeal in light of the applicable statute. It has reviewed the record, including the transcript of the March 19, 2015, proceedings in the family support magistrate court, and considered the oral arguments and written briefs of the parties.

DISCUSSION

The resolution of the appeal requires the court to address two main issues. The first is whether it was proper for the FSM to consider the defendant's pending personal injury claim as a " substantial asset" within the meaning of General Statutes § 46b-215e. If the answer to that question is in the affirmative, the second is whether the orders of current and retroactive support that the FSM entered on the basis of that asset were appropriate. The court discusses each question in turn.

1. May the incarcerated defendant's unliquidated personal injury claim be considered a " substantial asset" pursuant to General Statutes § 46b-215e?

General Statutes § 46b-215e governs a court's authority to impose a current child support order upon an incarcerated obligor. Although § 46b-215e does not explicitly define the phrase " substantial assets, " the statute indicates that " an initial order for current support [shall be] . . . based upon the obligor's . . . substantial assets, if any, in accordance with the child support guidelines established pursuant to section 46b-215a." (Emphasis added.) Thus, the plain language of the governing statute directs a court to consider the child support guidelines when imposing a current order of child support upon an incarcerated obligor.

The child support guidelines established pursuant to General Statutes § 46b-215a are contained in Section 46b-215a-2b of the Regulations of Connecticut State Agencies, which provides in relevant part that " [t]his section shall be used to determine the current support . . . of all child support awards within the state, subject to section 46b-215a-3 of the Regulations of Connecticut State Agencies ." ^[3] (Emphasis added.) Regs. Conn. State Agencies § 46b-215a-2b(a)(1). Section 46b-215a-3 of the Regulations of Connecticut State Agencies sets forth the " deviation criteria" that courts are permitted to consider upon an adequate finding that the presumptive amount of child support established by application of the guidelines would be inequitable or inappropriate. See, e.g., Kavanah v. Kavanah, 142 Conn.App. 775, 66 A.3d 922 (2013); see also Regs., Conn. State Agencies § 46b-215a-3(a). Section 46b-215a-3(b)(1) of the Regulations of Connecticut State Agencies provides in relevant part that " [t]he resources that may justify a deviation from presumptive support amounts under this subdivision are limited to the following: (A) substantial assets, including both income-producing and non-income-producing property . . ." (Emphasis added.)

When read together with the governing statute, § 46b-215e, the Regulations of Connecticut State Agencies permit a court to consider an incarcerated obligor's income-producing and non-income-producing property to establish a current order of child support upon an adequate finding that the presumptive amount of child support would be inequitable or inappropriate. Our appellate courts have squarely held that a chose in action is deemed property in other contexts. Specifically, courts have held that a chose in action is " property" subject to distribution under General Statutes § 46b-81.^[4]

For example, in Rousseau v. Perricone, 148 Conn.App. 837, 847, 88 A.3d 559 (2014), the Appellate Court addressed the question of " whether the pending civil action [in that case] [was] 'property' subject to distribution under General Statutes § 46b-81." Id., 847. After discussing relevant Connecticut Supreme Court precedent, ^[5] the Appellate Court held that the cause of action in the separate civil action was property for purposes of § 46b-81. Id., 849. Notably, the court stated that " [t]here is no doubt that a right in action, [when] it comes into existence under common-law principles, and is not given by statute as a mere penalty or without equitable basis, is as much property as any tangible possession . . ." Id., quoting Siller v. Siller, 112 Conn. 145, 150, 151 A. 524 (1930).

The Appellate Court's holding in Rousseau v. Perricone, supra, also finds considerable support in other decisions. See, e.g., Mickey v. Mickey, 292 Conn. 597, 624 n.20, 974 A.2d 641 (2009) (discussing Smith v. Smith, 249 Conn. 265, 286, 752 A.2d 1023 (1999), and noting that defendant in Smith " had obtained a chose in action during the course of the marriage, which is clearly a property interest subject to distribution"); Dolak v. Sullivan, 145 Conn. 497, 504, 144 A.2d 312 (1958) (" chose in action" is in tangible personal property"); Siller v. Siller, supra, 112 Conn. 150 (when right in action comes into existence, it is property like any tangible possession); see also Raccio v. Raccio, 41 Conn.Supp. 115, 122, 556 A.2d 639 (unliquidated tort claim is part of estate under § 46b-81).

The case law, therefore, makes it clear that even an unliquidated claim or chose in action constitutes an asset. The defendant, in effect, argues that the court must apply the statute as if it included the word " liquid" between the words " substantial" and assets, " but neither the language of the statute nor the pertinent regulations require or suggest such an interpretation. Certainly the legislature could have inserted the word " liquid, " or a word of similar import, into the statute had that been its intent. To the contrary, the statute expressly references the child support guideline regulations, which provide that even " non-income producing property" may constitute a substantial asset justifying a deviation for purposes of child support. The regulations do not limit " substantial assets" to those which currently produce cash.

The court concludes that the pending personal injury claim of the defendant was properly considered an asset by the FSM. And while the claim was unliquidated and the precise value undetermined at the time of the hearing, there was ample evidence from which he could properly conclude that the asset was " substantial."

2. Were the orders of current and retroactive support that were entered on the basis of the defendant's " substantial assets, " as described...