author: KATZ, J.

text:
    ROXANNE M. POLIZOS v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (SC 16214)
    Borden, Norcott, Katz, Palmer and Verlefeuille, Js.

      Argued December 5, 2000
    officially released April 3, 2001

      A. Jeffrey Somers, for the appellant (defendant).

      George J. Markley, with whom, on the brief, was Raymond B. Rubens, for the appellee (plaintiff).
   Opinion

KATZ, J.

This case requires us to determine when the statute of limitations under General Statutes § 52-576 (a) begins to run on a claim for uninsured motorist benefits. We conclude that the statute of limitations does not begin to run until the plaintiff knew or should have known that the tortfeasor was uninsured. Accordingly, we affirm the judgment of the Appellate Court, which had affirmed the trial court’s order compelling the parties to proceed with arbitration of the plaintiffs claim for uninsured benefits. Polizos v. Nationwide Mutual Ins. Co., 54 Conn. App. 724, 732, 737 A.2d 946 (1999).

The record discloses the following facts as set out by the Appellate Court. “On April 16, 1988, the plaintiff [Roxanne M. Polizos] was an insured under an automobile liability policy issued by the defendant [Nationwide Mutual Insurance Company] when she was involved in an automobile accident with [a vehicle operated by] Marc Mead. Mead was driving a car leased to him by Sharp Leasing Corporation (Sharp Leasing). On April 25, 1988, the plaintiff applied to the defendant for medical benefits. Subsequently, on March 12, 1989, the plaintiff filed an action against Mead and Sharp Leasing. On May 10, 1989, Progressive Insurance wrote a letter to the plaintiffs counsel on behalf of Sharp Leasing. Also, an attorney appeared for Sharp Leasing on May 25, 1989.

“On June 17, 1994, the plaintiff filed interrogatories, which Sharp Leasing answered on July 15, 1994. The answers indicated a lack of insurance coverage. The case was then tried to a jury and a plaintiffs verdict in the amount of $202,000 was rendered on May 10,1996. The plaintiff was unable to collect the award. On June 19, 1996, counsel for Sharp Leasing wrote to the plaintiffs attorney stating that Sharp Leasing was not insured, and that to the best of his knowledge, Mead was also not insured.

“On July 17, 1996, [the] plaintiffs counsel made a demand to the defendant for payment under the uninsured motorist coverage provisions of her policy. The defendant denied the claim and invoked the statute of limitations for written contracts ... § 52-576 (a). Subsequently, the plaintiff filed an application in the Superior Court to compel arbitration, which was granted by a memorandum of decision on February 9, 1998.” Id., 725-26.

“The defendant objected to the plaintiffs application to compel arbitration of her uninsured motorist claim on the ground that the plaintiffs claim was barred by the six year statute of limitations set forth in § 52-576 (a). The defendant argued that the statute of limitations began to run on the date of the plaintiffs automobile accident. The plaintiff, however, argued that the uninsured coverage claim accrued when the verdict against Sharp Leasing was secured.

“The trial court rejected both of those claims and concluded that the time period began to run from the date when the plaintiff received answers to her interrogatories that suggested that Sharp Leasing might not have insurance that was sufficient to cover the accident. The trial court reasoned that the particular' facts unique to this case put forth an equitably obvious moment when [the] plaintiff must be held to have been alerted that action ought to be taken to request arbitration or issue notice of the likely need therefor. That point in time occurred when the plaintiff received the interrogatory answer indicating a complete absence of coverage; it was then that [an uninsured motorist] action could successfully be maintained.” (Internal quotation marks omitted.) Id., 727.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly concluded that the plaintiffs application to compel arbitration was not barred by the six year limitation period contained in § 52-576 (a). Specifically, the defendant contended that the plaintiffs demand for payment, made on July 17, 1996, was untimely because the statute of limitations ran from the date of the accident, April 16, 1988. Id., 726-27. Concluding that the cause of action for uninsured benefits under the insurance policy accrued on July 15, 1994, the date the plaintiff knew or should have known of the lack of insurance coverage, the Appellate Court determined that her claim was timely under § 52-576 (a). Accordingly, the Appellate Court affirmed the judgment of the trial court. Id., 732.

Thereafter, the defendant filed a petition for certification to appeal to this court, which we granted, limited to the following issue: “Did the Appellate Court properly conclude that the contract statute of limitations on the plaintiffs action for uninsured motorist benefits began to run on the date that the plaintiff became aware that the tortfeasor was uninsured?” Polizos v. Nationwide Mutual Ins. Co., 251 Conn. 916, 740 A.2d 865 (1999). We answer this question in the affirmative and, accordingly, we affirm the judgment of the Appellate Court.

The defendant advances a “bright line” approach, arguing that because the tortfeasor was uninsured at the time of the April 16, 1988 accident, the cause of action accrued, and the statute of limitations began to run, as of that date. As a result, the defendant maintains that the plaintiffs demand for payment and subsequent application to compel arbitration was time barred.

The plaintiff contends that the “linchpin of accrual is not when a claim can be initiated, but, rather, when a claim can be enforced.” Coelho v. ITT Hartford, 251 Conn. 106, 110, 752 A.2d 1063 (1999). In the context of the present case, she maintains in her brief that “enforcement of one’s rights is impossible until one knows that there are rights to be enforced.” Accordingly, the plaintiff argues that, because the accrual of a cause of action for uninsured motorist benefits is linked to the knowledge that the tortfeasor is uninsured, “the mere occurrence of an accident does not, in and of itself, give rise to an uninsured motorist claim.” Therefore, the plaintiff contends that the statute of limitations under § 52-576 (a), as applied to her claim for uninsured benefits, began to run when she first knew or should have known that the tortfeasor was uninsured. The plaintiff submits that the earliest date on which she should have known that the tortfeasor was uninsured was, as determined by the trial court, and affirmed by the Appellate Court, the date on which the plaintiff received answers to her interrogatories, thereby putting her on notice that there was no insurance coverage for the accident.

The dispute between the parties in the present case raises an issue of statutory construction. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Smith v. Smith, 249 Conn. 265, 272-73, 752 A.2d 1023 (1999).” (Internal quotation marks omitted.) Coelho v. ITT Hartford, supra, 251 Conn. 110.

The subject matter involved in the present case is uninsured motorist insurance, the purpose of which “is to place the insured in the same position as . . . the insured would have been had the [uninsured] tortfeasor been fully insured.” (Emphasis in original; internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27, 699 A.2d 964 (1997). “It is well established that the public policy derived from the uninsured motorist legislation is that every insured is entitled to recover for the damages he or she would have been able to recover if the uninsured motorist had maintained a policy of liability insurance. Insurance companies are powerless to restrict the broad coverage mandated by the statute. . . . The public policy embodied in our uninsured motorist legislation favors indemnification of accident victims unless they are responsible for the accident. . . . Therefore, any limitation on the ability of an individual injured by an uninsured motorist to recover benefits for his injuries will have to bear close scrutiny.” (Citations omitted; internal quotation marks omitted.) Keystone Ins. Co. v. Raffile, 225 Conn. 223, 232-33, 622 A.2d 564 (1993).

Against this background, we turn to General Statutes § 52-576 (a), which provides in relevant part that, “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” The question we must answer in the present case, then, is when the right of action for uninsured motorist benefits accrued under the plaintiffs contract with the defendant. “Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand.” (Internal quotation marks omitted.) Coelho v. ITT Hartford, supra, 251 Conn. 111; D’Occhio v. Real Estate Commission, 189 Conn. 162, 182, 455 A.2d 833 (1983); Eising v. Andrews, 66 Conn. 58, 64, 33 A. 585 (1895); cf. Vaughn v. State Farm Mutual Automobile Ins. Co., 445 So. 2d 224, 226 (Miss. 1984) (“[A] cause of action ‘accrues’ when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. ... [A] cause of action must be complete before it can be said to have ‘accrued.’ ” [Internal quotation marks omitted.]). “While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action.” (Internal quotation marks omitted.) Coelho v. ITT Hartford, supra, 111; Engelman v. Connecticut General Life Ins. Co., 240 Conn. 287, 294 n.7, 690 A.2d 882 (1997).

In considering this issue, admittedly one of first impression in our state, we recognize that “there has been almost no discussion of this matter in either the appellate cases [of other states] or the secondary literature.” 1 A. Widiss, Uninsured and Underinsured Motorist Insurance (2d Ed. Rev. 1999) § 7.12, p. 377. We conclude, however, that, reading § 52-576 (a) in conjunction with other relevant case law, an action for uninsured motorist benefits does not accrue, and thus, the statute of limitations does not begin to run, until the plaintiff knew or should have known that the tortfea-sor was uninsured.

In Coelho v. ITT Hartford, supra, 251 Conn. 106, we addressed a similar situation. The plaintiffs therein had been injured as the result of a motor vehicle accident. Id., 107. After exhausting the limits of liability under the tortfeasor’s policy, the plaintiffs submitted an application for an order to proceed with arbitration in compliance with the underinsured motorist provision of their contract with the defendant. Id., 108. The defendant objected, claiming that the cause of action for underinsured motorist benefits had accrued on the date of the accident, and thus, the pertinent statute of limitations, § 52-576 (a), had been triggered as of that date. Id. On that theoiy, the defendant maintained, the plaintiffs’ application, submitted more than six years thereafter, was time barred. Id.

In Coelho, we determined that, “a cause of action for underinsured motorist benefits provides a remedy, not for an injury sustained as the result of a motor vehicle accident, but, rather, for the denial of coverage under a tortfeasor’s insurance policy.” Id., 112, citing General Statutes § 38a-336 (b). Thus, we rejected the defendant’s contention that the date of the accident was the trigger date for accrual under an underinsured motorist policy. Id., 112-14. We determined that “because the statute of limitations under § 52-576 is based on the accrual of a cause of action for underinsured motorist benefits, and accrual is dependent upon enforcement, the time for commencing such an action begins to run on the date of exhaustion of the tortfeasor’s liability limits.” Id., 112. Accordingly, we concluded that the plaintiffs’ application for arbitration was timely because it was submitted within six years from the date of exhaustion. Id., 117.

In the present case, the defendant maintains in its brief that, because the plaintiff “could, theoretically,” successfully have maintained an action against the tort-feasor on the date of the accident, her cause of action for uninsured motorist benefits accrued, and thus, the statute of limitations began to run, as of that date. (Emphasis added.) This was the argument, in essence, that we rejected in Coelho. As we noted therein, “the concept of accrual under a particular statute differs from the right to initiate recovery proceedings under a particular policy provision.” Coelho v. ITT Hartford, supra, 251 Conn. 113-14. Indeed, in the present case, although the plaintiff, theoretically could have initiated an action against the tortfeasor on the date of the accident, using the date of the accident as the accrual date for her uninsured motorist action would require the plaintiff to have made a claim against the defendant “before she ha[d] any awareness of a coverage problem,” or essentially, before she knew of her right to bring an action against the defendant. Polizos v. Nationwide Mutual Ins. Co., supra, 54 Conn. App. 730-31. Therefore, simply because the plaintiff could have initiated a claim against the tortfeasor on the date of the accident does not necessarily mean that her claim for uninsured motorist benefits accrued on that date.

It is well established that the absence of insurance under the tortfeasor’s policy is an essential element, and indeed, a necessary precondition, to the recovery of uninsured motorist benefits. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195, 530 A.2d 171 (1987); see also Williams v. State Farm Mutual Automobile Ins. Co., 229 Conn. 359, 367-68, 641 A.2d 783 (1994) (noting that in order to recover under underinsured motorist policy, insured must prove amount of damages and that other motorist was underinsured and legally liable). That prerequisite to recovery confirms that a cause of action for uninsured benefits, like a cause of action for underinsured benefits, provides a remedy for the denial of coverage under a tortfeasor’s policy, not for an injuiy sustained as a result of a motor vehicle accident. Coelho v. ITT Hartford, supra, 251 Conn. 112; see also Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 24 (noting that action for benefits under uninsured motorist coverage endorsement is, generally speaking, action to enforce contract); Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 479, 659 A.2d 1188 (1995) (employing without comment contract statute of limitations, rather than statute of limitations applicable to tort actions); Wynn v. Metropolitan Property & Casualty Co., 30 Conn. App. 803, 807, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994) (same). Accordingly, because an award of uninsured benefits cannot be enforced until it is determined that the tortfeasor is uninsured, such a claim does not accrue until the plaintiff is aware or should have been aware of that fact. Cf. Mapes v. Auto Club Ins. Assn., 208 Mich. App. 5, 7, 527 N.W.2d 22 (1994) (concluding that plaintiff did not have legally enforceable uninsured motorist claim until tortfeasor’s insurer became insolvent); Vaughn v. State Farm Mutual Automobile Ins. Co., supra, 445 So. 2d 226 (concluding that where issue of uninsured status of driver was disputed, cause of action for uninsured motorist benefits did not accrue until final determination made that driver was not insured); Allstate Ins. Co. v. Giordano, 108 App. Div. 2d 910, 912, 485 N.Y.S.2d 797 (1985) (concluding that vehicle did not “become uninsured” for purposes of instituting arbitration proceeding against claimants’ own insurer until court determined vehicle stolen and owner’s insurer not liable); Kraly v. Vannewkirk, 69 Ohio St. 3d 627, 633-35, 635 N.E.2d 323 (1994) (concluding that statute of limitations for uninsured motorist claim did not begin to run until tortfeasor’s insurer became insolvent); Seay v. Prudential Property & Casualty Ins. Co., 375 Pa. Super. 37, 42, 543 A.2d 1166 (1988) (concluding that plaintiff knew or should have known on date of accident that tortfeasors’ vehicles “were unidentified and therefore presumptively uninsured”).

The defendant contends that a determination that a cause of action for uninsured motorist benefits accrues when the plaintiff first learns that the tortfeasor is uninsured, will place “the control of when the statute of limitations begins to run unilaterally in the hands of the plaintiff.” The defendant maintains that, under that standard, a plaintiff “could, hypothetically, postpone any inquiry about the insured status of [a] defendant until many years after the accident, and then wait six more year’s to present a claim to his or her insurer.” Additionally, the defendant urges the date of the accident as the accrual date because it will ensure “consistent application of the statute of limitations . . . .” We are not persuaded that those concerns should determine the resolution of this issue.

Taking the arguments in order, we first note that, in uninsured motorist actions, intentional manipulation of the court system or delay in bringing suit is simply not an issue. Indeed, the defendant has failed to provide any explanation as to why an individual who has been injured in an automobile accident would intentionally delay inquiring about the uninsured status of the tortfea-sor in order to postpone bringing an action to recover for his or her injuries. Additionally, by deciding that a plaintiffs cause of action accrues, and the statute of limitations begins to run, when she knows of the uninsured status of the tortfeasor or reasonably should have known, the trial court in the present case injected some objectivity into the analysis See, e.g., Seay v. Prudential Property & Casualty Ins. Co., supra, 375 Pa. Super. 42 (applying “knows” or “should have known” objective discovery standard). Thus, a plaintiff in an uninsured motorist case could not, as the defendant contends, “postpone any inquiry about the insured status of the [tortfeasor] until many years after an accident, and then wait six more years to present a claim to his or her insurer.”

Our real concern in uninsured motorist actions is the plaintiffs access to, or more importantly, the insurance company’s control over the information regarding the uninsured status of the tortfeasor. Although in most circumstances, a plaintiff will become aware of the tortfeasor’s uninsured status at the time of the accident, or shortly thereafter, in certain cases, such as the present one, it may, through no fault of the plaintiff, take some time to discover that information. Indeed, the insurance company is the party who holds all of the information. Therefore, the defendant’s concern about manipulation by the plaintiff is unwarranted, and its suggestion to use the date of the accident to trigger the statute of limitations unjustifiably threatens to penalize the plaintiff for her lack of information when that information was not within her control.

A leading treatise on uninsured motorist insurance also recognizes the problem presented in this case, that is, “when the discovery of the tortfeasor’s status occurs after a substantial period of time had [passed] following the occurrence of the accident.” 1 A. Widiss, supra, § 7.12, p. 383. In these types of cases, the treatise notes, “the injured person should not be penalized,” by the court’s use of the date of the accident as the accrual date. Id., § 7.13, p. 386. Rather, the case “should be decided on the basis of whether the claimant has vigilantly pursued the claim.” Id.

The defendant also warns that using the date of the accident will ensure “consistent application of the statute of limitations . . . We recognize the superficial appeal of that argument, but nevertheless, we are not persuaded that this concern should influence our determination of this issue. As the defendant recognized, both in its brief and at oral argument, there may be instances in which using the date of the accident as the accrual date would be unfair to the plaintiff. See footnote 7 of this opinion. As Professor Widiss again points out, there could be certain circumstances in which a plaintiff will not be aware of the status of the tortfeasor at the time of the accident, including those involving an insured tortfeasor whose insurance company later becomes insolvent, or an insured tortfeasor whose insurer denies liability. 1 A. Widiss, supra, § 7.13, p. 386. Thus, this seemingly “consistent application” of the statute of limitations, is, in actuality, not so consistent.

Finally, as we noted in Coelho, an insurance carrier, pursuant to No. 93-77 of the 1993 Public Acts, now codified at § 38a-336 (g), may contract out of the six year statutory limitations period by requiring written notice of an impending claim within a shorter period, one that the insurer itself establishes. Coelho v. ITT Hartford, supra, 251 Conn. 117. Thus, “[i]t is the insurer’s prerogative ... to guard against the assertion of stale claims that could potentially arise as a consequence of our reading of § 52-576.” Id.

We conclude that because the statute of limitations under § 52-576 (a) is based on the accrual of a cause of action, and accrual of a cause of action for uninsured motorist benefits is dependent upon a plaintiffs ability to enforce the uninsured motorist contract, the time for commencing such an action begins to run when the plaintiff knew or should have known that the tortfeasor was uninsured. In the present action, the plaintiff successfully could have maintained an action against the defendant as of the date that she was notified of the tortfeasor’s lack of insurance coverage, July 15, 1994. That was when the plaintiff knew or should have known that she had a right to bring an action against the defendant for uninsured motorist benefits. Accordingly, the plaintiffs application for arbitration was timely.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-576 (a) provides: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

       “The letter from Progressive Insurance to the plaintiff [provided] in part: ‘[W]e [Progressive Insurance] are an excess liability insurance carrier for [Sharp Leasing], Under the terms of our policy, we provide coverage to Sharp Leasing when, because of their status as owner of a leased vehicle, they become financially responsible for damages suffered by a third party. In addition, under certain circumstances, the policy provides the lessee with the statutory minimum financial responsibility limits of the state in which the loss occurred. Our policy only becomes effective when there is no other insurance available on the leased vehicle. We are currently investigating the applicability of our coverage to this matter. You will be notified as soon as a final determination is made.’ ” Polizos v. Nationwide Mutual Ins. Co., supra, 54 Conn. App. 725-26 n.l.

       The jury verdict in favor of the plaintiff was returned against Sharp Leasing. Mead never appeared in this case and a default subsequently was entered against him. Subsequent references herein to the “tortfeasor” are to Sharp Leasing.

       “The plaintiffs automobile liability insurance policy contained a written agreement to arbitrate. The defendant conceded that the letter demanding payment of the plaintiffs uninsured motorist coverage was sufficient, substantively, to demand that it arbitrate the plaintiffs uninsured motorist claim.” Polizos v. Nationwide Mutual Ins. Co., supra, 54 Conn. App. 726 n.2.

       Tho defendant also maintained that the trial court improperly had granted the plaintiffs application to compel arbitration because her claim was not within the two year statute of limitations set forth in her insurance policy with the defendant. The Appellate Court did not reach the merits of this claim because the defendant had failed to raise the issue in the trial court. Polizos v. Nationwide Mutual Ins. Co., supra, 54 Conn. App. 731.

       As the plaintiff properly noted in her brief, because she might have had the opportunity to realize the lack of coverage in July, 1994, when Sharp Leasing’s interrogatory answers were served, the issue in this appeal is more appropriately stated as follows: Did the Appellate Court properly conclude that the contract statute of limitations on the plaintiffs action for uninsured motorist benefits began to run on the date that the plaintiff knew or should have known that the tortfeasor was uninsured?

       The defendant conceded, however, that this “bright line” is, in reality, not so bright. The defendant recognized in its brief that in cases in which the tortfeasor is insured on the date of the accident, but thereafter, becomes uninsured, the statute of limitations would begin to run on the date the tortfeasor becomes uninsured. In addition, the defendant acknowledged at oral argument in this court that there may be circumstances in which it would be unfair to a plaintiff to use the date of the accident as the accrual date, such as a situation in which the tortfeasor’s insurance company provides information to the plaintiff that is short of being fraudulent, but nevertheless, is misleading.

       Specifically, the defendant in Coelho argued that “[b]ecause the plaintiffs’ claim could have been initiated immediately after the . . . accident, the pertinent statute of limitations, § 52-576 (a), began to run as of that date.” (Emphasis added.) Coelho v. ITT Hartford, supra, 251 Conn. 109. Essentially, the defendant maintained that “a cause of action for underinsured benefits accrues from the date that an action may be brought.” Id.

       General Statutes § 38a-336 (b) provides: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured and underinsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured and underinsured motorist coverage, exceed the limits of the insured’s uninsured and underinsured motorist coverage. In no event shall there be any reduction of uninsured or underinsured motorist coverage limits or benefits payable for amounts received by the insured for Social Security disability benefits paid or payable pursuant to the Social Security Act, 42 USC Section 301, et seq. The limitation on the total amount of recovery from all policies shall not apply to underinsured motorist conversion coverage purchased pursuant to section 38a-336a.”

       In the present case, an overview of the record confirms the finding by the trial court that the plaintiff had no knowledge of the uninsured status of the tortfeasor until well after the date of the accident, specifically, when she received Sharp Leasing’s answers to her interrogatories on July 15,1994, indicating a lack of coverage. The trial court determined that, prior to July 15, 1994, the plaintiffs belief that there was coverage was justified based upon the letter that she had received from Progressive Insurance discussing such coverage. Moreover, we note that although the letter from Progressive Insurance indicated that the plaintiff would be informed as soon as a final determination concerning its coverage was made; see footnote 2 of this opinion; no such determination was ever communicated until after the jury verdict, seven years later.

       General Statutes § 38a-336 (g) provides: “(1) No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or underinsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.
      “(2) Notwithstanding the provisions of subdivision (1) of this subsection, in the case of an uninsured motorist claim, if the motor vehicle of a tortfeasor is an uninsured motor vehicle because the automobile liability insurance company of such tortfeasor becomes insolvent or denies coverage, no insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured motorist provisions of an automobile liability insurance policy to a period of less than one year from the date of receipt by the insured of written notice of such insolvency of, or denial of coverage by, such automobile liability insurance company.”


source: Caselaw Access Project

license: Public Domain

text:
    MARGUERITA MARROCCO v. MICHAEL A. GIARDINO
    (SC 16427)
    Borden, Norcott, Katz, Palmer and Sullivan, Js.

    Argued January 12
    officially released April 3, 2001

      Martin D. Wheeler, with whom were Claudine Siegel and, on the brief, Joanne Lewis and Terrence R. Real, for the appellant (defendant).

      Patricia Pac, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Donald M. Longley, assistant attorney general, for the appellee (state).

      Lucy Potter and Shelley White filed a brief for the Connecticut Legal Rights Project et al. as amici curiae.

       The listing of justices reflects their seniority status on this court as of the date of oral argument

   Opinion

KATZ, J.

The principal issue in this appeal is whether, in an action for child support, the use of the “best interests of the child” criterion may justify an order against the noncustodial parent to pay child support from his public assistance benefits, an obligation otherwise proscribed by the child support and arrearage guidelines (guidelines). The trial court approved a ruling by a family support magistrate that deviation from the guidelines is allowable in ordering an award of child support, if it is in the best interests of the child, even when the parent’s sole source of income is from public assistance. The defendant appealed from the judgment of the trial court to the Appellate Court, and pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c), we transferred the appeal to this court. We reverse the judgment of the trial court.

The record discloses the following facts and procedural history. The plaintiff, Marguerita Marrocco, and the defendant, Michael A. Giardino, are the parents of a child bom on October 31, 1985. The plaintiff has primary physical custody of the child. In 1996, then family support magistrate Paul Matasavage entered a default order requiring the defendant to pay child support in the amount of $50 per week plus $5 per week toward an undisclosed arrearage. On January 5, 1999, the defendant filed a motion for modification of child support on the grounds that he was incapacitated as a result of a motor vehicle accident and derived his sole support from supplemental security income (SSI), pursuant to 42 U.S.C. § 1381 et seq., and from state supplementation pursuant to General Statutes § 17b-600. Thereafter, the family support magistrate temporarily suspended his prior order of child support and continued the matter to September 14, 1999, for purposes of considering whether, under the updated child support guidelines, effective August 1, 1999, the defendant would be required to pay child support.

On September 14,1999, another family support magistrate, Denise Chisholm Langley, heard arguments on the defendant’s motion to modify and the plaintiffs motion for contempt. At that time, the defendant submitted a financial affidavit indicating that he had been receiving federal and state public assistance benefits consisting of SSI benefits in the amount of $500 per month, a state supplementation of $247 per month, and food stamps in the amount of $81 per month. On the basis of that affidavit, the family support magistrate determined that the defendant had no income under the guidelines, and, therefore, pursuant to those guidelines, owed $0 in current support. She concluded, however, that the best interests of the child justified a deviation from the guidelines, and, accordingly, ordered the defendant to pay $12 per week in child support and $1 per week toward any arrearages. Specifically, the family support magistrate determined that it would be “inappropriate” and “unfair” to follow the guidelines in this case, noting that if the plaintiff and the defendant had been living together, the defendant would have had to share his SSI benefits and food stamps with his family. She further noted that “it was unreasonable and outrageous” for the defendant to have made “no offer [of child support] in the best interests of [his] minor child.”

The defendant appealed from the family support magistrate’s decision to the trial court. The trial court, Dran-ginis, J., dismissed the appeal, concluding that the guidelines did not prohibit the family support magistrate from using the deviation criterion—the best interests of the child—in ordering an award of child support when the defendant’s income consisted only of public assistance. This appeal followed.

The defendant claims that the trial court improperly upheld the family support magistrate’s decision to deviate from the guidelines in concluding that the defendant must pay child support out of his SSI benefits and public assistance grants. Specifically, he maintains that the SSI and state supplementation are expressly excluded from gross income in determining child support pursuant to § 46b-215a-l (11) (A) (ix) and (B) (ii) of the Regulations of Connecticut State Agencies. The defendant further argues that the trial court improperly concluded that the family support magistrate had improperly used the best interests of the child criterion to justify her decision to deviate from the guidelines. The plaintiff argues, conversely, that the trial court was correct because the family support magistrate had acted within her discretion in deviating from the guidelines pursuant to § 46b-215a-3 of the Regulations of Connecticut State Agencies on the basis that, given the best interests of the child, application of the guidelines would have been inequitable and inappropriate in this case.

“Resolution of this issue requires us to interpret the statutory scheme that governs child support determinations in Connecticut, and, therefore, constitutes a question of law.” Unkelbach v. McNary, 244 Conn. 350, 357, 710 A.2d 717 (1998); Jenkins v. Jenkins, 243 Conn. 584, 587-88, 704 A.2d 231 (1998); see also Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089 (1998). The standard of appellate review governing questions of law dictates that “[w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Unkelbach v. McNary, supra, 357; Jenkins v. Jenkins, supra, 588. “When the question of law involves statutory interpretation, that determination is guided by well settled principles.” Unkelbach v. McNary, supra, 357. In construing statutes, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and corn-mon law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id.; Jenkins v. Jenkins, supra, 588. Moreover, “[o]ur rules of statutory construction apply to administrative regulations. . . . Diamond v. Marcinek, [226 Conn. 737, 744 n.8, 629 A.2d 350 (1993)]; Preston v. Dept. of Environmental Protection, 218 Conn. 821, 829 n.9, 591 A.2d 421 (1991).” (Internal quotation marks omitted.) Vitti v. Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269 (1998). Our examination of the language, history and purpose of the guidelines leads us to conclude that the defendant offers the more sound inteipretation of the guidelines. Accordingly, we reverse the judgment of the trial court.

We begin with a brief overview of the relevant statutory and regulatory framework. In 1989, the legislature enacted No. 89-203 of the 1989 Public Acts, first codified at General Statutes (Rev. to 1991) § 46b-215a, establishing the third commission for child support guidelines, charged with three specific statutory mandates: (1) to review previous child support guidelines; (2) to establish criteria and promulgate new guidelines to “ensure the appropriateness of child support awards”; and (3) “to issue updated guidelines not later than January 1, 1991 and every four years thereafter.”

In General Statutes (Rev. to 1991) § 46b-215b (a), the legislature made four significant changes in the application of the guidelines to questions of child support. These changes, moreover, replaced the “flexible and nondirective approach” taken by previous sets of guidelines that, although made available to the court, were in no way binding on it. See Favrow v. Vargas, 222 Conn. 699, 707-15, 610 A.2d 1267 (1992) (discussing history of and changes to guidelines). The statute provides: (1) that the guidelines “shall be considered in all determinations of child support amounts within the state”; (2) that “there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered”; (3) that in order “to rebut the presumption in such case,” a court or family support magistrate must make a “specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case”; and (4) that such a specific finding must be “determined under criteria established by the commission . . . .” General Statutes (Rev. to 1991) § 46b-215b (a).

In response to these statutory mandates, the commission promulgated new guidelines in 1991, which were later revised in 1994, and again in 1999. The primary puiposes of the current guidelines are: “(1) To provide uniform procedures for establishing an adequate level of support for children, and for repayment of child support arrearages, subject to the ability of parents to pay ... (2) [t]o make awards more equitable by ensuring the consistent treatment of persons in similar circumstances ... (3) [t]o improve the efficiency of the court process by promoting settlements and by giving courts and the parties guidance in setting the levels of awards . . . [and] (4) [t]o conform to applicable federal and state statutory and regulatory mandates.” Child Support and Arrearage Guidelines (1999) preamble, § (b), p. i.

The guidelines are based upon the concept that children “should receive the same proportion of parental income that [they] would have received had the parents lived together.” Id., preamble, § (c), p. i. Thus, “[t]oward that end, the guidelines are income driven, rather than expense driven. At each income level, the guidelines allocate a certain percentage of parental income to child support. The percentage allocations contained in the guidelines aim to reflect the average proportions of income spent on children in households of various income and family sizes, and contain a built-in self-support reserve for the obligor . . . , The result is that the guidelines incorporate an allocation of resources between parents and children that the legislature has decided is the appropriate allocation. Consequently, our interpretation of the guidelines must seek to preserve this allocation.” (Citation omitted.) Unkelbach v. McNary, supra, 244 Conn. 357-58.

Under § 46b-215a-2a of the guidelines, the child support obligation first is determined by calculating the parent’s net income, defined as “gross income minus allowable deductions . . . .” Child Support and Arrear-age Guidelines (1999) preamble, § (f), p. v. Deviation criteria such as “the best interests of the child,” become relevant only if a deviation from the amount of support calculated under the guidelines is sought pursuant to § 46b-215a-3. The amount of support determined without reference to the deviation criteria, however, is presumed to be the correct amount of support. This presumption may be rebutted only by a specific finding on the record that it would be inequitable or inappropriate to apply the guidelines because of evidence satisfying one of the guideline’s deviation criteria. Id.

In considering the applicability of deviation criteria to change the presumptive amount of child support, we have stated that “Lj]ust as different statutes must be read so as to form a consistent whole . . . the deviation criteria must be read, insofar as possible, so as to form a consistent whole with the guidelines, both of which were issued by the same commission.” (Citation omitted.) Favrow v. Vargas, supra, 222 Conn. 715. In addition, we have recognized that because “the guidelines evolved from an experimental, intentionally nondi-rective and flexible approach to the imposition of standards that are presumptively binding on the court or magistrate ... in general . . . the ensuing work of the commission substantially circumscribes the traditionally broad judicial discretion of the court [to deviate from the guidelines] in matters of child support.” (Emphasis added.) Id.

With these principles in mind, we now turn to the plaintiffs claims in this appeal. The plaintiff concedes that under the guidelines, the defendant’s presumptive child support obligation is $0. Indeed, she acknowledges that SSI benefits and any state supplementation are excluded from the determination of gross income for purposes of ascertaining child support. Relying primarily upon the public policy embodied in the preamble to the guidelines, however, the plaintiff argues that the intent of the guidelines is to ensure that all parents are responsible for their children, noting additionally that, “nowhere [in the guidelines] is there even an indication” that the commission intended to exempt SSI recipients from having to support their children. On that basis, she contends that the family support magistrate properly questioned the defendant about his living expenses, determined that cable television was a “discretionary expense,” and used that expense as the basis for deviating, in the best interests of the child, from the presumptive child support order of $0 to $12 per week. We disagree.

The policies underlying the commission’s decision to exclude both SSI and public assistance grants from the guideline’s presumptive calculation of child support compel a conclusion that deviation from the guidelines cannot be premised on the availability of income attributable to those sources. First, the commission’s decision to exclude SSI from gross income in 1994 was based on the fact that SSI is a federal social welfare program designed to provide a guaranteed minimum income level necessary for the subsistence of individuals who cannot work because of age, blindness or disability. Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981); Child Support and Arrearage Guidelines (1994) preamble, § (f) (1) (c), p. viii (“[SSI] has been eliminated as a gross income inclusion because it is a means tested federal assistance grant”). “Because of the nature of the program’s mission, SSI recipients have a very low income level and little, if any, opportunity to raise that level because of their age or disability.” Young v. Young, 802 S.W.2d 594, 598 (Tenn. 1990). Similarly, state supplementation is designed to provide only a minimum level of support to those recipients of SSI whose expenses exceed their current benefits. General Statutes § 17b-600.

Thus, both SSI and state supplementation are awarded on the basis of need and are designed to protect the individual recipients from poverty. It therefore follows that allowing child support payments to be deducted from this already small figure, would reduce the recipient’s income below that necessary to protect him or her from poverty; Becker County Human Services v. Peppel, 493 N.W.2d 573, 575 (Minn. App. 1992); Young v. Young, supra, 802 S.W.2d 598; in contravention to the legislative intent that drives these programs. The fact that the commission expressly excluded both SSI and public assistance grants from the calculation of gross income indicates that the commission recognized the purpose underlying these programs and determined that parents should not be required to subsist on below poverty level incomes so that they may provide something in child support. Therefore, although the plaintiff is correct in her assertion that the intent of the guidelines is to ensure that parents support their children, that principle has no application to those parents whose sole source of income is SSI and state supplementation.

Second, the most recent revision of the guidelines confirms what has been noted previously, namely, that the commission did not intend to require parents to pay child support from SSI benefits and state supplementation. In 1999, in response to this court’s decision in Jenkins v. Jenkins, supra, 243 Conn. 584, the commission reconsidered the definition of gross income under the guidelines and interpreted it broadly to include items that, in effect, increase the amount of income that is available for child support purposes. Specifically, the commission expanded the definition to include social security benefits received directly by the children of a noncustodial parent, benefits not previously included in the determination of gross income. Id., 595. It nevertheless maintained, however, the exclusion of SSI and public assistance benefits from that calculation. Id., 590-91.

In 1999, the commission also vastly increased the child support orders of low income obligors, those individuals who indeed had some income under the guidelines, by significantly reducing the amount of income that he or she was permitted to retain after payment of child support. The commission considered, however, but did not adopt, a fixed minimum payment provision under which a person would have been required to pay a minimum amount of support, regardless of whether he or she had any income under the guidelines. Thus, although the commission made significant changes in the direction of expanding the amount of income that is available for child support purposes, indeed providing less protection to individuals earning very little, it nevertheless recognized a distinction between those with no earning capacity and those with some earning capacity.

Third, we are not persuaded that public assistance grants, including SSI benefits and state supplementation, qualify under the deviation criterion, “best interests of the child.” As noted previously herein, the deviation criteria must be read so as to be consistent with the guidelines. Favrow v. Vargas, supra, 222 Conn. 715. To allow a deviation from the guidelines in this case, premised on the availability of public assistance grants, would be inconsistent with the guidelines because “[t]he guidelines expressly provide that public assistance grants are not to be included in [the] determination of gross income.” Feliciano v. Feliciano, 37 Conn. App. 856, 859, 658 A.2d 146 (1995).

In Feliciano, the Appellate Court addressed a nearly identical issue to the one in the present case, namely, whether public assistance grants, although expressly excluded from the definition of gross income, qualified under the deviation criterion, “other equitable factors,” and therefore could be considered in calculating child support. Id. The court concluded that allowing this deviation would create “a back door method to consider something the legislature believed should not be considered.” (Internal quotation marks omitted.) Id. The Appellate Court reasoned that “[w]here one part of the guidelines provides that public assistance benefits are not to be considered in establishing gross income, it would be manifestly inconsistent to allow those same benefits to be used as a deviation criterion under the catchall exception of other equitable factors.” Id. This court affirmed that determination. Feliciano v. Felici-ano, 236 Conn. 719, 721, 674 A.2d 1311 (1996).

Similarly, in Favrow v. Vargas, supra, 222 Conn. 699, this court addressed whether the trial court properly determined that the living expenses of a noncustodial parent could be considered in awarding child support under the same deviation criterion, “other equitable factors.” We concluded that “the trial court’s order finding a deviation from the guidelines on the basis of the respondent’s actual living expenses amounted to a disagreement with the guidelines themselves, rather than an application of the deviation criteria established by the commission.” Id., 716.

Specifically, in Favrow we noted: “It is true that the language of [the ‘other equitable factors’] criterion is very broad and would, at first glance, appear to give the trial court almost as much discretion as it had before the promulgation of the guidelines. To read this criterion, however, so as to permit the court to deviate from the guidelines solely on the basis of the noncustodial parent’s actual living expenses, even when they are relatively modest in amount, would in effect permit the exception to swallow the rule. . . . Furthermore, to give precedence to current living expenses would be to read the catch-all, [‘other equitable factors’] deviation criterion so as to be inconsistent with and, in effect, to govern the application of the guidelines themselves. Finally, to do so would be inconsistent with the circumscribed discretion that the guidelines have imposed on the trial court by the 1989 legislation that replaced the broad discretion that the trial court had in such matters before the promulgation of the guidelines.” Id., 715-16.

In the present case, the best interests of the child criterion is comparable to the catchall deviation criterion, other equitable factors, addressed in Favrow and Feliciano. Similarly, although the best interests of the child criterion appears to give the trial court unlimited discretion to deviate from the presumptive award of child support, to give consideration to SSI and state supplementation would be to read the best interests of the child deviation criterion “so as to be inconsistent with and, in effect, to govern the application of the guidelines themselves.” Id., 716; see Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992) (“[w]hen construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible” [internal quotation marks omitted]), overruled on other grounds, 242 Conn. 689, 699 A.2d 1003 (1997). Indeed, as this court acknowledged in Favrow v. Vargas, supra, 222 Conn. 716, permitting public assistance grants to qualify as a deviation criterion would allow the “exception to swallow the rule.” Moreover, it would create “a back door method to consider something the legislature believed should not be considered.” (Internal quotation marks omitted.) Feliciano v. Feliciano, supra, 37 Conn. App. 859.

Lastly, in further support of our conclusion that the legislature intended SSI and state supplementation to be excluded from the determination of child support, we consider the tenet of statutory construction known as expressio unius est exclusio alteráis, translated as “ ‘the expression of one thing is the exclusion of another.’ Black’s Law Dictionary (6th Ed. 1990); 73 Am. Jur. 2d, Statutes § 211 (1974). ‘[W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute.’ 73 Am. Jur. 2d, supra, § 316; see Iovieno v. Commissioner of Correction, [supra, 222 Conn. 258]; Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991).” Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 476, 673 A.2d 484 (1996).

In 1999, for the first time, the commission expressly excluded from gross income the “regularly recurring contributions or gifts of a spouse or domestic partner.” Regs., Conn. State Agencies § 46b-215a-l (11) (B) (iv). The commission, however, also determined that those contributions or gifts may, “in limited circumstances, constitute a financial resource justifying deviation from presumptive support amounts.” (Emphasis added.) Child Support and Arrearage Guidelines (1999) preamble, § (h) (2). Thus, § 46b-215a-3 (b) (1) (D) explicitly delineates such resources as bases for deviating from the guidelines. See footnote 8 of this opinion. Moreover, that section provides explicit guidance to trial courts as to the exact circumstances that may justify a support order different from the presumptive amount calculated under the guidelines. Specifically, under § 46b-215a-3 (b) (1) (D), such circumstances are limited to those in which a parent has either “reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts.”

In contrast, public assistance benefits and SSI, like contributions and gifts, are expressly excluded from the definition of gross income. Regs., Conn. State Agencies § 46b-215a-l (11) (b) (ii); see footnote 6 of this opinion. Neither SSI, nor public assistance benefits are, however, expressly included in the deviation criteria. The absence of deviation criteria relating specifically to SSI and public assistance grants reflects that they were not intended to qualify as bases upon which a trial court may justify a deviation from the guidelines. In reliance on the classic inclusio unius est exclusio alteráis principle, we conclude that, had the commission wanted to allow SSI and public assistance grants to be considered in determinations of child support, it would have provided a separate deviation criterion specifically including them, similar to that afforded to contributions and gifts.

Of course, every parent has a moral obligation to support his children. See Rose v. Rose, 481 U.S. 619, 632, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987) (“family support obligations are deeply rooted moral responsibilities”). The defendant here, however, a disabled, noncustodial and indisputably indigent parent, is living on public assistance benefits directed at providing him with the minimum support necessary to live. By requiring these benefits, specifically designed to guarantee a floor for the defendant, to be diverted for child support purposes would be tantamount to uprooting that floor, indeed, undercutting the minimum support guarantee that these programs intended.

In promulgating the guidelines, the commission recognized the purpose underlying SSI and public assistance grants. Indeed, it expressly excluded both SSI and public assistance grants from the definition of gross income, and thereafter, made no mention of these benefits as deviation criteria. Moreover, although balancing the financial needs of children against the needs of disabled parents who survive solely on SSI and public assistance grants is a difficult policy choice to make, it is neither the family support magistrate’s nor our function to override the commission’s legislative determination that SSI and public assistance may not be considered in determining child support. To allow a deviation from the guidelines, premised on income attributable to SSI and state supplementation would be inconsistent with the guidelines as well as the purpose of these programs. We therefore conclude that deviation from the guidelines cannot be based on income attributable to SSI and state supplementation.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the defendant’s appeal and to award $0 in current child support.

In this opinion the other justices concurred.

       See Regs., Conn. State Agencies § 46b-215a-l et seq. “The guidelines are promulgated by the commission for child support guidelines (commission), which was established by the legislature pursuant to General Statutes § 46b-215a. General Statutes § 46b-215b (a) provides that the guidelines are to be considered in all determinations of child support in the state, and creates a rebuttable presumption that the amount of support calculated through application of the guidelines is the amount of support to be ordered ."Jenkins v. Jenkins, 243 Conn. 584, 586 n.2, 704 A.2d 231 (1998).

       Subsequently, the defendant submitted to the family support magistrate a letter from his doctor, indicating that he was completely disabled.

       The plaintiff had filed a motion for contempt against the defendant on August 28, 1998. The family support magistrate did not dispose of the contempt issue during the hearing.

       At the hearing, in response to the defendant’s claim that his weekly expenses "considerably” exceeded his income, the family support magistrate inquired as to the defendant’s discretionary expenses, namely, cable television, motor vehicle and telephone expenses. The defendant responded that he paid approximately $11.54 per week for cable television, but that he had neither a car nor a telephone.

       This determination ignored two important points. First, as we discuss later in this opinion, SSI is based on the individual recipient’s financial need and provides no additional benefit for dependents. See footnote 16 of this opinion. Second, if the plaintiff and the defendant had been living together, the plaintiffs income would have been considered available to the defendant, and thus, the defendant’s SSI benefits would have been reduced. See 42 U.S.C. § 1382a (a) (2) (A).

      Section 46b-215a-l of the Regulations of Connecticut State Agencies provides in relevant part: “Definitions
      “As used in sections 46b-215a-l, 46b-215a-2a, 46b-215a-3, 46b-215a-4a and 46b-215a-5a . . .
      “(11) ‘Gross income’ means the average weekly earned and unearned income from all sources before deductions, including but not limited to the items listed in subparagraph (a) of this subdivision, but excluding the items listed in subparagraph (b) of this subdivision.
      “(A) Inclusions
      “The gross income inclusions are:

        “(i) salary;
      “(ii) hourly wages for regular, overtime, and additional employment up to a maximum of 52 total paid hours per week;
      “(iii) commissions, bonuses and tips;
      “(iv) profit sharing, deferred compensation and severance pay;
      “(v) employment perquisites and in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of or in addition to salary or wages);
      “(vi) military personnel fringe benefit payments;
      “(vii) benefits received in place of earned income including, but not limited to, workers’ compensation benefits, unemployment insurance benefits, strike pay and disability insurance benefits;
      “(viii) veterans’ benefits;
      “(ix) social security benefits (excluding Supplemental Security Income [SSI]), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined;
      “(x) net proceeds from contractual agreements;
      “(xi) pension and retirement income;
      “(xii) rental income after deduction of reasonable and necessary expenses;
      “(xiii) estate or trust income;
      “(xiv) royalties;
      “(xv) interest, dividends and annuities;
      “(xvi) self-employment earnings, after deduction of all reasonable and necessary business expenses;
      “(xvii) alimony being paid by an individual who is not a party to the support determination;
      “(xviii) regularly recurring gifts, prizes, and lottery and gambling winnings (except as provided in paragraph [B] [iv] of this subdivision); and
      “(xix) education grants (including fellowships or subsidies that are available for personal living expenses).
      “(B) Exclusions
      “The gross income exclusions are:
      “(i) support received on behalf of a child who is living in the home of the parent whose income is being determined;
      “(ii) federal, state and local public assistance grants;
      “(iii) earned income tax credit; and
      “(iv) the income and regularly recurring contributions or gifts of a spouse or domestic partner. ...”

       The defendant also maintains that the trial court improperly upheld the family support magistrate’s decision to deviate from the guidelines because: (1) the family support magistrate had failed to make specific findings of fact regarding the best interests of the child, as required under the guidelines, and (2) federal law precludes orders to pay child support out of SSI benefits. Because we conclude that the guidelines permit neither SSI benefits, nor state supplementation to be reached for purposes of paying child support, we need not address these issues.

       Section 46b-215a-3 of the Regulations of Connecticut State Agencies, which describes the circumstances that may justify a support order different from the presumptive support amounts calculated under the child support and arrearage guidelines, provides: “Child support guidelines deviation criteria
      “(a) Introduction
      “The current support, health care coverage contribution, and child care contribution amounts calculated under section 46b-215a-2a of the Regulations of Connecticut State Agencies, and the amount of the arrearage payment calculated under section 46b-215a-4a of the Regulations of Connecticut State Agencies, are presumed to be the correct amounts to be ordered. The presumption regarding each such amount may be rebutted by a specific finding on the record that such amount would be inequitable or inappropriate in a particular case. Any such finding shall state the amount that would have been required under such sections and include a justification for the variance. Only the deviation criteria described in this section establish sufficient bases for such findings.
      “(b) Criteria for deviation from presumptive support amounts
      “(1) Other financial resources available to a parent
      “In some cases, a parent may have financial resources that are not included in the definition of net income, but could be used by such parent for the benefit of the child or for meeting the needs of the parent. The following resources may justify a deviation from presumptive support amounts:
      “(A) substantial assets, including both income-producing and non-income-producing property;
      “(B) the parent’s earning capacity;
      “(C) parental support being provided to a minor obligor; and
      “(D) the regularly recurring contributions or gifts of a spouse or domestic partner, but only if it is found that the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts.
      “(2) Extraordinary expenses for care and maintenance of the child
      “In some cases, a parent may be incurring extraordinary expenses that are essential for the proper care and maintenance of the child whose support is being determined. The following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts:
      “(A) education expenses,
      “(B) unreimbursable medical expenses, and
      “(C) expenses for special needs.
      “(3) Extraordinary parental expenses
      “In some cases, a parent may incur extraordinary expenses which are not considered allowable deductions from gross income but which are necessary for the parent to maintain a satisfactory parental relationship with the child, continue employment, or provide for the parent’s own medical needs. The following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts:
      “(A) significant visitation expenses,
      “(B) job-related unreimbursable employment expenses of individuals who are not self-employed, and
      “(C) unreimbursable medical and disability-related expenses.
      “(4) Needs of a parent’s other dependents
      “In some cases, a parent may be legally responsible for the support of individuals other than the child whose support is being determined. In such cases, it may be appropriate to deviate from presumptive support amounts based on the following factors:
      “(A) resources available to a qualified child for whom a deduction was taken under subsection (e) of section 46b-215a-2a of the Regulations of Connecticut State Agencies;
      “(B) verified support payments made by a parent for his or her dependent child not residing with such parent; and
      “(C) the significant and essential needs of a spouse, provided
      “(i) such needs may be used as a possible defense against an increase in the support order, but not as a reason for decreasing such order, and
      “(ii) the income, assets, and earning capacity of such spouse shall be considered in determining whether to deviate.
      “(5) Coordination of total family support
      “In some cases, child support is considered in conjunction with a determination of total family support, property settlement, and tax implications. When such considerations will not result in a lesser economic benefit to the child, it may be appropriate to deviate from presumptive support amounts for the following reasons:
      “(A) division of assets and liabilities,
      “(B) provision of alimony, and
      “(C) tax planning considerations.
      “(6) Special circumstances
      “In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Following are such circumstances:
      “(A) Shared physical custody.
      “When a shared physical custody arrangement exists, deviation is warranted only when:
      “(i) Such arrangement substantially reduces the custodial parent’s, or substantially increases the noncustodial parent’s, expenses for the child; and
      “(ii) Sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation.
      “(B) Best interests of the child.
      “(C) Other equitable factors.”

       General Statutes (Rev. to 1991) § 46b-215a provides: “Commission for Child Support Guidelines. Duties. Members. The commission for child support guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than January 1, 1991, and every four years thereafter. The commission shall consist of eleven members as follows: The chief court administrator or his designee, the commissioner of human resources or his designee, the attorney general or his designee, the chairpersons and ranking members of the joint standing committee on judiciary or their designees and a representative of the Connecticut Bar Association, a representative of legal services, a person who represents the financial concerns of child support obligors and a representative of the permanent commission on the status of women, all of whom shall be appointed by the governor. The chairperson of the commission shall be elected by the members of the commission.”
      Since its enactment, § 46b-215a has been amended several times, making the statute applicable to payments on arrearages and past due support; see Public Acts 1991, No. 91-391, § 7; and changing the deadlines for the issuance of updated guidelines. See Public Acts 1992, No. 92-253, § 1, and Public Acts 1993, No. 93-329, § 5. A minor technical change was also made in 1993. See Public Acts 1993, No. 93-262, § 1. Substantively, however, this section has remained otherwise unchanged.

       The first set of guidelines were promulgated in 1984 pursuant to No. 84-74, § 1, of the 1984 Special Acts. They “were specifically for the use of family relations counselors in mediating and conciliating disputes and were not aimed at the discretion of the court . . . .” Favrow v. Vargas, 222 Conn. 699, 708, 610 A.2d 1267 (1992). The commission responsible for establishing the guidelines purposely made them flexible and nondirective. Id. In 1985, the legislature enacted No. 85-548 of the 1985 Public Acts, entitled “An Act Implementing the Federal Child Support Enforcement Amendments of 1984,” in response to federal legislation regarding support for children. Id., 710 and n. 13. Section 8 of Public Act 85-548 established a commission to develop guidelines, and expanded their use from family relations counselors to the court. The guidelines, however, were not binding on the court. Id., 710-11.

       General Statutes (Rev. to 1991) § 46b-215b provides in relevant part: “Guidelines to be used in determination of amount of support. Presumption, (a) The child support guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case. . . .”
      Since its enactment, § 46b-215b has been amended to apply to payments on arrearages and past due support. See Public Acts 1991, No. 91-391, § 8. Another minor technical change was made in 1997. See Public Acts 1997, No. 97-1. Substantively, the statute has remained otherwise unchanged.

       In 1999, the commission increased the child support orders of low income obligors by reducing the amount of income which an obligor was permitted to retain after payment of support. Under the 1994 guidelines, a court had been required to leave the obligor with a “self-support reserve” of $145 per week. See Child Support and Arrearage Guidelines (1994) preamble, § (d) (2) (B). The 1999 revision replaced that flat amount with a percentage, allowing low income obligors earning a net of $10 to less than $150 per week to retain 81 to 90 percent of that income, depending upon the number of children that the obligor has. See Child Support and Arrearage Guidelines (1999) preamble, § (d) (6) (A).

       Under § 46b-215a-3, there are six criteria, including the best interests of the child, which permit deviation from presumptive support amounts. See footnote 8 of this opinion.

       In promulgating the 1994 revision oi' the guidelines, the commission expressly excluded SSI as well as federal, state and local public assistance grants from the definition of gross income. See Child Support and Arrearage Guidelines (1994) preamble, § (f) (1) (C), p. viii (“[SSI] has been eliminated as a gross income inclusion”). Under § 46b-215a-l (11), gross income is now defined as “the average weekly earned and unearned income from all sources before deductions . . . .” That section further identifies nineteen specific elements of gross income and provides that gross income includes, but is not limited to, those items. See Regs., Conn. State Agencies § 46b-215a-l (11) (A). The list of specifically enumerated inclusions recognizes social security benefits, including dependency benefits as items included in gross income, but identifies SSI as an item that is expressly excluded. See footnote 6 of this opinion. In addition, the definition of gross income specifically excludes the following four items: “(i) support received on behalf of a child who is living in the home of the parent whose income is being determined; (ii) federal, state and local public assistance grants', (iii) earned income tax credit; and (iv) the income and regularly recurring contributions or gifts of a spouse or domestic partner.” (Emphasis added.) Regs., Conn. State Agencies § 46b-215a-l (11) (B). SSI, state supplementation, and food stamps constitute forms of public assistance. Indeed, state supplementation is offered by the department of social services to disabled persons receiving SSI. See General Statutes §§ 17b-2 (10) and 17b-600. Food stamps are also provided by the department of social services to low income persons in order to purchase sufficient food. See General Statutes § 17b-2 (9); 7 U.S.C. § 2011 et seq.

       General Statutes § 17b-600 provides: “Optional state supplementation program. Eligibility. The Commissioner of Social Services shall administer a program of optional state supplementation as provided for by Title XVI of the Social Security Act, as amended, and shall administer the program in accordance with the requirements provided therein. In accordance with the requirements of Title XVI of said Social Security Act, optional state supplementation may be provided to aged, blind and disabled individuals who receive supplemental security income benefits or who would be eligible to receive such benefits except for income, provided that any applicant or recipient of optional state supplementation shall be ineligible for such supplementary assistance if such person has made, within twenty-four months prior to the date of application for such aid, an assignment or transfer or other disposition of property for less than fair market value, for the purpose of establishing eligibility for benefits or assistance under this section, provided ineligibility because of such disposition shall continue only for either (1) twenty-four months after the date of disposition or (2) that period of time from date of disposition over which the fair market value of such property, less any consideration received in exchange for its disposition, together with all other income and resources, would furnish support on a reasonable standard of health and decency, whichever period is shorter, except that in any case where the uncompensated value of disposed of resources exceeds twelve thousand dollars, the Commissioner of Social Services shall provide for a period of ineligibility based on the uncompensated value which exceeds twenty-four months. Any disposition shall be presumed to have been made for the purpose of establishing eligibility for benefits or assistance unless the individual furnishes convincing evidence to establish that the transaction was exclusively for some other purpose. Property which is exempted from consideration in determining Hie financial eligibility of an individual for benefits or assistance, such as a house in which the individual resides, shall not be subject to the provisions of this section regarding transfers of property if such property is disposed of while an individual is receiving benefits or assistance under this section. The program of optional state supplementation shall be administered in accordance with regulations to be adopted by the Department of Social Services, which regulations shall be consistent with the requirements of Title XVI of the Social Security Act pertaining to programs of optional state supplementation. Until such time as regulations are adopted by the department governing the program of optional state supplementation, the department is authorized to administer said program in accordance with the regulations and departmental policy manual provisions applicable to the aid to the elderly, aid to the blind and aid to the disabled programs, which regulations and policy manual provisions shall be fully applicable to the program of optional state supplementation, except that in no event shall optional state supplementation be given to persons who either are not recipients of federal supplemental security income benefits or are not persons who, except for income, would be eligible for supplemental security income benefits.”

       The exclusion of SSI from gross income reflects one of the stated purposes of the current guidelines: “To conform to applicable federal . . . statutory and regulatory mandates.” Child Support and Arrearage Guidelines (1999) preamble, § (b) (4). In Young v. Young, supra, 802 S.W.2d 598, the court recognized that “[ijmplicit in the SSI program, and the broader scheme of which it is a part, is the intention that these payments are for the benefit of the recipient, rather than for the benefit of the recipient and the recipient’s dependents.” Specifically, the court stated: “The Senate Report on the Social Security Amendments of 1972 describes the SSI program as apian ‘designed to provide a positive assurance that the Nation’s aged, blind, and disabled people would no longer have to subsist on below-poverty-level incomes.’ S. Rep. No. 92-1230, p. 384. The 1972 amendments also provided for Aid to Families with Dependent Children, a program which ‘offers welfare payments to families in which the father is dead, absent, disabled, or, at the State’s option, unemployed.’ S. Rep. No. 92-1230, p. 505 .... Thus, although ‘ [t]he Committee believe[d] that all children have the right to receive support from their fathers,’ S. Rep. No. 92-1230, p. 505, the [Aid to Families With Dependent Children] program it established provides that payments to the children of disabled fathers are separate from payments to the disabled fathers themselves. Had it been the intent of Congress that SSI funds would also benefit the recipient’s dependents, these payments obviously would not have been set up in this way.” (Citation omitted; emphasis in original.) Young v. Young, supra, 598.

       In Jenkins v. Jenkins, supra, 243 Conn. 595, this court concluded that social security dependency benefits received by the children of a noncustodial parent on account of that parent’s disability must be included in the noncustodial parent’s income for purposes of determining the parent’s child support obligation.

       Under the 1994 guidelines, an obligor retained a self-support reserve of $145 per week. The 1999 revision replaced that flat amount with a variable self-support reserve equal to net income minus a minimal support order, that order being as low as $1 for parents earning only $10 per week. See footnote 12 of this opinion.

       The commission addressed the minimum payment provision in its written responses to comments raised at public hearings. The response stated that the commission instead had chosen the variable approach “because it is not an arbitrary fixed amount, but is dependent on the obligor’s income, and is consistent with the obligor’s ability to pay.’’ (Emphasis added.) Commission for Child Support Guidelines Regulations, Response to Public Comments, p. 11.

       This determination was made in response to this court’s decision in Unkelbach v. McNary, supra, 244 Conn. 350, in which we concluded that contributions made by a parent’s domestic partner toward his living expenses were included in the parent’s gross income. Child Support and Arrearage Guidelines (1999) preamble, § (f) (B) (ii) (“[t]he commission believes that the principles enunciated in [Unkelbach] are best embodied in the form of a deviation criterion”).