Susan O'Donnell is a partner in the Litigation Department at Halloran & Sage.
With over twenty years experience as a defense attorney, Susan represents the interests of individuals and businesses, as well as insurance carriers and their insureds, in Connecticut and Federal Court in civil litigation matters. She handles matters pertaining to personal injury and wrongful death, toxic torts, premises and liquor liability, subrogation, motor vehicle and fire loss and product liability. Susan has tried numerous cases to verdict. She has extensive experience representing clients in arbitration and mediation hearings.
Additionally, Susan represents individuals in divorce and family law litigation matters. With an abundance of empathy, and a commitment to timely resolution, she handles dissolution matters, custody and visitation issues, asset and property distribution and post judgment modification and enforcement issues. She is a member of the Family Law Section of the Connecticut Bar Association.
Child Support and the Demise Of Judicial Discretion
Connecticut Law Tribune, 08/13/2013
For more than 20 years now, family lawyers and trial judges have relied on the Connecticut Child Support and Arrearage Guidelines to determine appropriate child support amounts. But despite the trial court's broad discretion in domestic cases, there is a growing trend at the higher court level to upend child support awards that do not strictly adhere to those guidelines.
The guidelines are set forth in 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies, promulgated by the Commission for Child Support Guidelines. The goal is to provide uniformity in establishing adequate child support, and to promote equity and consistent treatment of parents. Presumptive child support figures are based on parents' net weekly income, the percentage of that income presumed to be spent on child support, and the number of children at stake. At present, the maximum number of children contemplated is six, and the highest net family weekly income is $4,000.
Statutes mandate that these child support and arrearage guidelines shall be considered in all determinations of child support award amounts. And in determining those awards, there is a rebuttable presumption that the amount that results from the application of the guidelines is the amount to be ordered. If the parties or court seek to deviate from that amount, there must be a specific factual finding that applying the guidelines would be inequitable or inappropriate. The deviation criteria are also set forth by the Commission.
Despite the obligation that these guidelines be considered, and that the presumptive amount is correct, albeit rebuttable, recent higher court decisions in Connecticut suggest an erosion of judicial discretion, making it harder for courts to draft orders deviating from them.
The goal of uniformity, equity and consistency in calculating basic child support amounts is laudable and certainly essential given the enormous number of lower-income families and self-represented parties navigating domestic disputes in Connecticut. It has generally not been these parents testing the limits in child support awards.
In 2010, the Connecticut Supreme Court released Maturo v. Maturo, immediately followed by Misthopoulos v. Misthopoulos, striking down awards that ordered the father to pay 20 percent of a substantial bonus to the custodial mother as child support. Specifically, the Court treated the percentage set forth in the guidelines schedule at the highest income level - 11.83 percent of net weekly income of $4,000 for one child - as the presumptive ceiling on the bonus amount, subject to rebuttable application of the deviation criteria and statutory factors in 46b-84(d).
The reasoning was simple: Trial courts should not have unfettered discretion in high income cases to make lavish child support awards that appear to be unrelated both to the needs of the children . . . and the principles articulated in the guidelines. Merely acknowledging that the guidelines were considered before crafting an order was insufficient. It appears that the Supreme Court's intention was to reinforce the percentages set forth under the guidelines, limit judicial discretion and make it more difficult to make any child support order in excess of the presumptive maximum.
This is not to say that needs of the children, as set forth in General Statutes 46b-84, is removed from the analysis. However, there is a clear message being sent by the courts: The presumptive guideline amounts presumably meet the child's needs absent specific factual findings otherwise.
A presumptive support amount must be established first, and any deviation must follow accordingly. In Kiniry v. Kiniry, the Supreme Court stressed that even in cases involving shared custody and fairly equal parenting time, it is good policy to establish a presumptive support amount...because a guideline of this nature provides the court with a means of comparing a party's request for child support with a fair and objective standard.Offers of Compromise: The Real Effects
Client Information, 03/01/2003
Plaintiff(s) Offer of Compromise
(written offer of compromise filed by the plaintiff(s) with the clerk of the court)
When Can They Be Filed? (Conn. Prac. Book 17-14)
Not earlier than 180 days after service of process; but
Not later than 30 days before commencement of the start of trial (jury selection or evidence in a courtside trial).
NOTE: The plaintiff(s) can withdraw the offer before it is accepted.
Not Accepted (Conn. Prac. Book 17-16)
Offers not accepted within 30 days, or until the rendering of a verdict by the jury or an award by the court (whichever comes first), are considered rejected;
Offers not accepted within 30 days are not subject to acceptance;
The jury is not informed about the filing of an Offer of Compromise.
Acceptance (Conn. Prac. Book 17-15)
A plaintiff may only file one offer of compromise;
Contradictory rulings make it unclear whether it is within the court's discretion to extend the time to respond to an offer;
Defendant(s) acceptance must be filed in writing with the court;
After acceptance and receipt of the agreed upon settlement funds, the plaintiff must withdraw the action.
Plaintiff X files an offer of compromise for $30,000. Defendant Y has valued the case at $25,000, but believes there is the possibility of a substantially higher jury award. As a result, Defendant Y accepts Plaintiff X's offer, to avoid exposure at trial and the potential imposition of interest if Plaintiff X were to be awarded more than $30,000 by a jury.
Impact of Not Accepting
When Plaintiff(s) Recover an Amount Equal to or Greater than Offer (Conn. Prac. Book 17-18)
After trial (final judgment has been reached as to damages) the court will determine whether any offers were filed that were not accepted;
If it is determined that the plaintiff(s) has recovered an amount equal to or greater than the offer, 8% annual interest shall be added to the amount recovered from the date the offer was filed;
If the offer was filed not later than 18 months from the filing of the complaint, the interest will be computed from the date the complaint was filed;
The interest awarded for failing to accept an offer is premised upon the fact that the defendant rejected an advantageous offer which would have terminated litigation;
The interest is computed pursuant to Conn. Gen. Stat. 52-192a;
Because 52-192a is punitive and mandatory, an insurer must pay the interest, but it may still be subject to the policy limits;
52-192a is a procedural rule, therefore an award of interest after an offer has been rejected does not hinge upon a determination of the substantive issue(s) of the case;
The judicial authority may award reasonable attorney's fees, not to exceed $350;
Statutory attorney's fees included in the recovery are compared to the amount of the offer;
Interest and attorney's fees may still be awarded even if the plaintiff(s) amends the complaint to add a new cause of action after an offer has been rejected;
The plaintiff's pretrial and trial conduct will not affect recovery of interest.
Plaintiff X files an offer of compromise for $30,000 one year after suit was filed on June 1, 2006. Defendant Y has valued the case at $25,000 and chooses not to accept Plaintiff X's offer. The case goes to trial and Plaintiff X is awarded $50,000 on June 1, 2008. As a result, Plaintiff X would be entitled to recover $8,000 in interest ($50,000 x .08=$4,000; $4,000 x 2 years=$8,000). Additionally, Plaintiff X may be awarded up to $350 in attorney's fees.
Defendant(s) Offer of Compromise
(written offer of compromise filed by the defendant(s) with the clerk of the court)
NOTE: Plaintiffs who prevail at trial always recover their costs, unless a defendant files an Offer of Compromise, which the verdict does not exceed.
When Can They Be Filed? (Conn. Prac. Book 17-11)
Not later than 30 days before trial, an offer may be filed by the defendant(s).
Acceptance (Conn. Prac. Book 17-12)
Plaintiff(s) have 60 days to accept a defendant's offer;
Schedule of trial is not effected by the filing of a defendant's offer even when trial is scheduled to begin before the 60 days has run except at the discretion of the judicial authority;
The time period for accepting begins to run once the offer is actually received by the plaintiff, not the date it is filed;
Upon acceptance by the plaintiff and receipt of the agreed upon settlement funds, a withdrawal of the action shall be filed.
Plaintiff X believes that there is a possibility a jury will award him up to $50,000. However, Plaintiff X is aware of issues of liability. Defendant Y has similar beliefs, but believes that a jury will award Plaintiff X at least $15,000 despite the issues surrounding liability. As a result, Defendant Y files an offer of compromise for $15,000. Due to liability issues and Plaintiff X's desire to receive money more quickly, Plaintiff X accepts Defendant Y's offer.
Not Accepted (Conn. Prac. Book 17-13)
The offer is deemed withdrawn if not accepted before any evidence is offered at the trial and, as a result, the offer will not be given in evidence;
Unless the plaintiff recovers more than the sum specified in the offer, with interest from the date of its filing, the plaintiff will not recover costs accruing after the plaintiff received notice of the filing of such offer, but will pay the defendant's costs accruing after the plaintiff received notice of the filing of the defendant's offer;
Costs may include reasonable attorney's fees not to exceed $350;
Award of attorney's fees is dependent on whether offer is reasonable;
Defendant may not recover costs based upon an offer that contains conditions.
Defendant Y is clearly liable for Plaintiff X's damages. After taking the plaintiff's deposition and review of all discovery, Defendant Y believes Plaintiff X will not recover more than $30,000 at trial. Plaintiff X, however, has demanded $100,000 without any indication that he is willing to negotiate. As a result, Defendant Y files an offer of compromise for $40,000, which Plaintiff X does not accept, believing the figure to be well below what he will be awarded by a jury. The case goes to trial and Plaintiff X is awarded $35,000 by the jury. Accordingly, because the award was less than the offer of compromise filed by Defendant Y, Plaintiff X was required to pay Defendant Y's costs of trial.
Plaintiff X has made a demand for $100,000.00. Defendant Y is almost certain that it will prevail at trial on the issue of liability. As a result, Defendant Y files an offer of compromise for $10,000, the approximate amount Defendant Y reasonably believes it will cost to try the case. Plaintiff X does not accept Defendant Y's offer. The case goes to trial and results in a defense verdict. As a result, Plaintiff X must pay Defendant Y's costs of trial.The examples illustrate the importance of discussing with counsel both the receipt of an Offer of Compromise and the filing of an Offer of Compromise prior to trial.
Content Provided By: Susan O'Donnell & Meg R. Reid.
News & Events
H & S 'Walks Like MADD' In Support of a Good Cause
Halloran & Sage recently fielded a walk team in support of the Walk Like MADD walkathon. The event, coordinated by the non-profit organization, Mothers Against Drunk Driving, was held in West Hartford, CT. Over 20 Halloran & Sage employees, family members and friends participated in the walk that also included various activities and giveaways.
Halloran & Sage was proud to participate in this worthwhile community event. The Firm also appreciated the opportunity to support their longtime client, State Farm Insurance Company, which invited the firm to participate in the event.
Walk Like MADD is the signature fundraising event of MADD, the nation's premier organization working to stop drunk driving, support victims of this violent crime and prevent underage drinking.