Opinion
No. NNI-FA03-0283509-S
November 20, 2007
MEMORANDUM OF DECISION RE CONTEMPT MOTIONS #213, #216 AND #217
This memorandum of decision primarily addresses issues raised through the plaintiff-mother's Motion for Contempt Re Life Insurance (#213), the defendant-father's Motion for Contempt (#216) and his Motion for Contempt (#217). The memorandum of decision also addresses the parties' claims regarding certain aspects of the plaintiff-mother's Motion for Contempt (#190), which was the subject of orders entered by the court (Dunnell, J.) on October 23 and November 6, 2006.
Throughout, the plaintiff-mother has been represented by skilled, experienced matrimonial counsel. The defendant-father, also represented by skilled and experienced counsel in prior aspects of this litigation, appeared pro se with regard to the pending contempt issues.
At the extended hearing before this court, the defendant-father appeared to have substantial knowledge of his rights and responsibilities as a pro se litigant. See O'Connell v. O'Connell, 101 Conn.App. 516, n. 8, 922 A.2d 293 (2007), citing Rivnak v. Rivnak, 99 Conn.App. 326, 332 n. 4, 913 A.2d 1096 (2007) ([A]lthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law").
For the reasons set forth herein, the court finds that the defendant-father has failed to meet his burden of proof on motions #216 and #217 and, accordingly, those motions are DENIED.
For the further reasons set forth herein, the court finds that the plaintiff-mother has met her burden of proof on motion #213 and that she has further proved sufficient basis for granting some of the relief requested. Accordingly, that motion is GRANTED, and the court herein awards the movant fair and just relief.
I. PROCEDURAL HISTORY
The parties have engaged in abundant, fractious post-judgment litigation since their marriage was dissolved on September 22, 2003. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 2.16.5, Judicial Proceedings and Records. ("Trial courts may take notice of the file in the same case . . ."). The file reflects the following history relevant to the pending motions:
The defendant-father filed approximately twenty-one motions for modification, contempt, sanctions and/or other orders between September 25, 2003 and February 8, 2007, when motions #216 and #217 were filed. The plaintiff-mother filed approximately twenty-five like motions prior to filing motion #213 on January 11, 2007.
On September 15, 2003, the parties entered into a written agreement that set forth the terms and conditions for dissolution of their marriage, custody and support of their minor children. (Exhibits 17, M.) On September 22, 2003, after an uncontested hearing, the court (Frazzini, J.) issued a judgment of dissolution (judgment) incorporating the agreement. (#125.)
The agreement was presented to the court in two parts. Document #123, entitled "Agreement," contains the language related to life insurance that is placed at issue by the pending motions for contempt. Document #124, entitled "Supplemental Agreement," deals with issues that are not relevant to the pending motions. Henceforth, #123 is referenced as "the agreement."
The agreement and judgment established the parties' duty to maintain life insurance to secure their child support obligations. (Exhibits 17, M; #123.) Paragraphs L. 1. and 2. of the agreement and judgment required each parent "to maintain insurance covering [his or her] life in a principal sum of $122,000. The children, Shelby Lynne Andrelski and Caroline Elizabeth Andrelski, shall be named in said insurance as irrevocable beneficiaries as long as either is alive and under the age of 23 years." (Exhibits 17, M.) These paragraphs further required that, as to each party, "[i]f for any reason such children receive less than what is due and owing by virtue of this paragraph, the [deceased parent's] estate shall be liable for the deficiency." (Exhibits 17, M.) Paragraph L. 3. of the agreement and judgment established the parties' obligation to inform each other of the status of their life insurance, stating: "The parties shall furnish to each other upon request, (sic) proof that each is insured in the specified manner and amounts and that each has named the beneficiaries as required by this Agreement." (Exhibits 17, M.)
General Statutes § 46b-86(a), generally addressing modification of support orders, expressly anticipates that in certain circumstances, the court may have ordered "either party to maintain life insurance for . . . a minor child of the parties . . ."
On December 20, 2004, after hearing a motion for contempt brought by the plaintiff-mother, the court (Taylor, J.) determined that the defendant-father had failed to comply with the life insurance obligations established by the agreement and judgment. The court did not, however, find the defendant-father in contempt on that date. (Exhibits 9, 19; Tr. 12/20/04; Testimony of PA.)
During the fall of 2006, the parties attended a number of hearings focused on the plaintiff-mother's renewed claims that the defendant-father was in compliance with the life insurance obligations as set forth in the agreement and judgment. On October 23, 2006, the court (Dunnell, J.) heard the plaintiff-mother's motion for contempt (#190) and found that the defendant-father had failed to maintain the requisite life insurance policy. The court concluded: "He must have it, it is the Order of this Court, first of all, I make a finding that it does not currently exist, that that is in violation of the judgment that originally entered, and that he must have it by November six . . ." (Exhibit 4; Tr. 10/23/06.) Effectively finding the defendant-father in willful contempt of the obligation to maintain life insurance established by the agreement and judgment; the court ordered the defendant-father to pay the plaintiff-mother's attorneys fees associated with this contempt; and further ordered the defendant-father to obtain an appropriate policy. (Exhibit 4; Tr. 10/23/06.)
The parties continued their contest over other aspects of the agreement and judgment during the fall of 2006, as well. For instance on November 3, 2006, the plaintiff-mother filed a motion for contempt relating the defendant-father's failure to pay certain child care expenses. (#197.) On November 8, 2006, the defendant-father filed a Motion for Contempt, Postjudgment, complaining that the plaintiff mother's actions with regard to child care were "in violation of the order of joint legal custody." (#200.) On November 13, 2006, the plaintiff mother filed her objection to motion #200 and requested that the defendant-father be subject to sanctions. (#201.) Also on November 13, 2006, the defendant-father filed his reply to the plaintiff-mother's objection. (#203.) At a hearing held on November 20, 2006, the defendant father filed a Motion for Order requesting payment of expenses incurred in defending the allegations contained in the plaintiff-mother's motion for contempt #197. (#204.) The defendant-father's motion #204 was withdrawn on the date of filing.
At that hearing, the defendant-father's counsel's admitted that "Mr. Andrelski does not have a current policy as we sit here today." (Exhibit 4; Tr. 10/23/06.) The transcript further reflects the court's findings (Dunnell, J.) that the defendant-father had the financial capacity to have honored the life insurance terms of the judgment, given his recent purchase of a one-half interest in a home that he then valued at approximately $380,000, less the mortgage loan of $197,000. (Exhibit 4; Tr. 10/23/06.)
On November 6, 2006, the defendant-father filed a Motion for Sanctions claiming, among other things, that on November 3, 2006, he had provided "sufficient" compliance with the court's October 23, 2006 order to obtain life insurance. (#198.) The court (Dunnell, J.) denied the motion.
On November 6, 2006, the court (Dunnell, J.) also conducted another hearing on the subject of whether the defendant-father had complied with the life insurance obligations established by the agreement and judgment, as claimed in motion #190. After hearing, the court issued additional orders, specific in nature, as follows:
1) Defendant is ordered to provide Plaintiff with an affidavit or other proof, acceptable to the plaintiff, that defendant has purchased a `smoker's' life insurance policy. This is to be done within 30 days.
2) Every 90 days each of the parties is to provide the other with a pay stub receipt which shows that the premium for each respective insurance policy has been paid for that period.
3) The defendant is ordered to provide plaintiff with proof that he has named his children as the beneficiaries under his life insurance policy. This must be done within 30 days.
4) Every 90 days thereafter, each of the parties is to provide the other with an affidavit from their respective employers stating that the children are the named beneficiaries under their respective policies.
(Exhibit 3; #199.) Neither party requested clarification of the November 6, 2006 orders.
On December 11, 2006, the court (Dunnell, J.) denied the defendant-father's Motion for Contempt #200, which related to child care issues; the court also granted the plaintiff-mother's request for imposition of related sanctions. (#200, #203.) On December 11, 2006, the court (Dunnell, J.) also held another hearing on the subject of whether the defendant-father's life insurance. On that date, the court found that the defendant-father had failed to comply life insurance obligations established by the agreement and judgment in that any policy he might have procured improperly identified one daughter as a primary beneficiary and the other as a contingent beneficiary. Notwithstanding his observed failure to comply with court orders, sanctions were not then imposed upon the defendant-father. (Exhibit L; Tr. 12/11/06.)
On January 4, 2007, the court ordered the defendant-father to pay counsel fees in the amount of $1,740.80 within thirty days, representing the expense incurred by the plaintiff-mother in defending contempt motion #200. (#203, #208; see also #209.)
The court specifically ruled: "Well they are not fifty-fifty . . . Now there is no compliance here in the sense that the other child is the contingent beneficiary and we don't have any proof that that has been changed as of today." (Emphasis added.) (Exhibit L; Tr. 12/11/06.)
On December 20, 2006, the defendant-father applied for waiver of fees and for appointment of counsel, ostensibly claiming indigency. The court (Dunnell, J.) denied this motion on December 21, 2006. On January 2, 2007, the defendant-father requested a hearing, which was scheduled for 10 am on January 3, 2007. At 2:21 pm on January 3, 2007, finding that the defendant-father had failed to appear for the hearing, the court (Dunnell, J.) again denied the application. (Exhibit 16; #210.)
On January 11, 2007, the plaintiff-mother filed her pending motion for contempt. Through motion #213, the plaintiff mother claimed that the defendant-father failed to adequately comply with two aspects of the court's November 6, 2006 orders: "to provide plaintiff with an affidavit or other proof, acceptable to the plaintiff, that the defendant has purchased a smoker's life insurance policy" and "to provide plaintiff with proof that he has named his children as the beneficiaries under his life insurance policy. This must be done within 30 days." (Internal quotation marks omitted; italics omitted.) (#213.) As relief, the plaintiff-mother requested a finding of contempt; that the defendant-father face incarceration until he had complied with the court's November 6, 2006 orders; and that he pay "her attorneys fees and costs for the prosecution of this motion as well as the other six court appearances on this issue, and order monetary punitive sanctions against the Defendant based on his continual disregard and willful contempt of this Court's orders." (#213.)
On February 8, 2007, the defendant-father filed Motion for Contempt #216 claiming that the plaintiff-mother had failed to "provide proof of life insurance on demand" as required by the agreement and judgment. Specifically, the defendant-father claimed that "on 11/3/06 a request was made by fired council (sic) for proof of insurance. As of 2/5/07 none has been provided." (#216.) Also on February 8, 2007, the defendant-father filed Motion for Contempt #217 claiming that the plaintiff-mother had failed to "provide pay stub showing proof of payment for life ins. Provide an affidavit from employer showing children are named beneficiaries every 90 days." (#217.) The defendant-father requested a finding that although on November 6, 2006 the court had ordered the plaintiff-mother to provide the requested proof, "As of 2/7/07 no documents have been provided." (#217.) The defendant-father requested no relief through the text of motions #216 and #217 other than a finding of contempt.
Motions #213, #216 and #217 were heard on March 27, 29, 30 and on July 30, 2007. During these proceedings, the court also received evidence related to certain aspects of the plaintiff-mother's motion for contempt #190 and the responsive orders issued on October 23 and November 6, 2007.
During these proceedings, the court also received evidence on the following motions, each of which has now been resolved: defendant-father's Motion to Open and Modify Judgment filed 10/31/06 (#196); Plaintiff's Postjudgment Motion for Order Re Vacation Periods and Notice of Summer Vacation Timing filed 2/28/07 (#218); Defendant's Objection to Post-Judgment Motion for Orders Re Vacation Periods and Notice of Summer Vacation Timing filed 3/8/07 (#219); and Defendant's Motion for Emergency Order Cease and Decest (sic) filed 3/14/07 (#221). On March 30, 2007, the court (Holzberg, J.) heard and resolved the Defendant's Motion to Modify (Limit Orders to Pay Camp Fees to 14 yr.) filed 3/8/07 (#220).
II. FACTUAL FINDINGS
The parties provided the court with voluminous documentary evidence consisting of subpoenas, emails and other correspondence, transcripts, excerpted transcripts, court filings, life insurance paperwork, pay stubs, and a written offer of proof from the defendant-father. Testimony was presented through David McKee, a life insurance agent; the defendant-father; the plaintiff-mother; and Atty. Michael Day, the defendant-father's prior counsel. The court utilized the applicable legal standards when considering the evidence as a whole. By this measure, the court finds the following facts:
The defendant-father had no objection to major portions of Atty. Day's testimony. Where issues of attorney-client privilege were raised, counsel for the plaintiff-mother did not press for responses. (See Testimony of MD.)
"It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court . . ." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . `[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67. "The probative force of conflicting evidence for the trier to determine . . ." (Internal quotation marks omitted; external citation omitted.) Anderson v. Whitten, 100 Conn.App. 730, 740, 918 A.2d 1056 (2007).
Additional facts will be found as required.
The parties are the parents of two teen-agers, Shelby Lynne born August 14, 1991 and Caroline Elizabeth born December 27, 1993 (the children). (Exhibit D; #123.) The children are served by a guardian ad litem (GAL) who is an attorney with specialized training in issues related to families. The court accepts and fully credits the GAL's cogent opinion that: it is in the children's best interests to have life insurance to protect them in the event that the defendant-father dies and is thus no longer able to provide them with current financial support; it is not in the children's best interests to have the parties repeatedly argue and repeatedly litigate their disagreements; and that the children's interests would best be served if the parties were able and willing to resolve their disputes outside of court. (Testimony of LZ.)
The GAL's opinions were based upon her skill, training and experience in like matters, and her familiarity with the parties and their long course of litigation, and her past meetings with the children. (Testimony of LZ.)
The plaintiff-mother has been employed by the Southern New England Telephone Company or its corporate relative for approximately twenty-seven years. Her annual salary was $73,875.00 as of January 31, 2007. Her employer extends the opportunity for purchase of life insurance through payroll deduction. (Exhibit P; Testimony of MR.)
By chosen occupation, the defendant-father is a sales representative; while he had periods of unemployment, he has largely retained his capacity to earn or receive lawful income. (Exhibits 2, 2a, 8, 12, 14.) Born on April 20, 1956, the defendant-father smokes cigarettes regularly and suffers from seasonal allergies; he is otherwise healthy, with no pre-existing conditions, and no reported family history of heart disease or cancer. (Exhibits 2, 6, 8.) From December 20, 2004 through July 12, 2006, the defendant-father was on occasion unemployed and was at other times employed in sales at AE Office Supplies, Staples, Nextel-Sprint, and at Bernies. (Exhibits E, F, G.) The defendant-father left his job at Staples on July 12, 2006; he did not procure or maintain life insurance adequate to meet the terms of the agreement and judgment from that date until the very end of the five-month period that followed. (Exhibits 6, 8; Testimony of PA; Tr. 10/23/06.)
Although in the early 2000s the defendant-father was charged with driving under the influence of alcohol, he credibly claimed that this arrest did not affect his employability. Even when his work with Dichello Distributors was terminated after this incident, he collected unemployment compensation. (Exhibits 2, 8, 31; Testimony of PA.)
The defendant-father tendered some evidence in an effort to show that he had maintained life insurance through his previous employment with Nextel and with Staples. However, the court finds the content of both the documentation and the defendant-father's explication thereof insufficient to establish the tenure of the policies, the nature, or the amount of coverage maintained. Accordingly, the court declines to find that this evidence establishes a history of compliance with the relevant terms of the agreement and the related judgment of dissolution. (Exhibits E, F, G; Testimony of PA.)
Commencing in April 2006, the defendant-father began residing with his domestic partner Bonnie Genest (Genest), who brought her own earned income into their shared residence. In the summer of 2006, the defendant-father and Genest purchased a home together. The court credits the defendant-father's testimony that at or about the time of hearing, this home was worth about $350,00 subject to a $195,000 mortgage he had obtained with Genest. (Testimony of PA.)
From time to time, the defendant-father refers to Genest as his "fiancee." (Testimony of PA.)
The court further credits the portion of the defendant-father's testimony establishing that he and Genest tendered a down payment of $47,000, and procured a mortgage loan for the remainder of the purchase price. The defendant-father admitted that the lender provided a mortgage based on Genest's income plus his representation of current income, notwithstanding his July 12, 2006 departure from employment at Staples. (Testimony of PA.)
Notwithstanding his capacity to procure a new home and mortgage, while he may have applied for life insurance to protect his children during the summer and fall of 2006, there is insufficient evidence from which the court could reasonably conclude that the defendant-father had insurance in force and effect, prior to December 23, 2006, as required by the agreement, the judgment, and as contemplated by the orders of November 6, 2006. Instead, the court fully credits the defendant-father's testimony that during the summer of 2006 and continuing through December 22, 2006, he voluntarily and intentionally deferred maintaining of life insurance, deciding instead to rely upon equity accumulated in the home as a means of complying with his life insurance obligations. (Testimony of PA.)
The court further credits the defendant-father's testimony which establishes that in lieu of using his sales skills to timely procure new employment during the summer of 2006, he elected instead to engage in financially demanding activities. At that time, the kitchen and family rooms in the new home were "totally" remodeled, new wall-to-wall carpeting was installed throughout, and improvements were made to the structure's ventilation. The court further credits the defendant-father's testimony that he was able to pay for these home improvements by accessing credit through his Visa, Discover, Home Depot and Master Card accounts; the Master Card account permitted cash advances. However, he did not then use his credit accounts to maintain the life insurance called for by the agreement and the judgment. (Testimony of PA.)
While these improvements likely added value to the property, the court finds insufficient basis for crediting the defendant-father's testimony that the value was enhanced by $100,000. (Testimony of PA.)
Although the defendant-father collected unemployment after his July 2006 termination from Staples, he chose not to use either his unemployment payments, either, to maintain the life insurance called for by the agreement and the judgment. Moreover, although Genest continued to contribute his household support during this period, the defendant-father did not obtain funds from her to use for purposes of maintaining the life insurance. The defendant-father voluntarily chose not to procure the insurance at issue and decided, on his own, to rely on the unmeasured share of equity in the home he owned with Genest as the means by which he would provide financial protection for his children upon his death. (Testimony of PA.)
On October 23, 2006, defendant-father was between jobs, without any life insurance in effect. (Testimony of MD.) As of November 4, 2006, the defendant-father had obtained employment with Northeast Beverage Company; at the time of hearing, he was still working for that employer. (Exhibits 2, 8, 15, 30; Testimony of MD.) For the pay period ending January 6, 2007, the defendant-father was paid the gross amount $443.38; a total of $65 was deducted from this pay check for "Life Insurance." (Exhibits 2, 15.) Any evidence reflecting the defendant-father's payment for life insurance through payroll deductions is insufficient, though, to enable the court to conclude that Northeast Beverage ever provided the defendant-father with life insurance benefits amounting to at least $122,000, or that the children had been designated on such policy as "irrevocable beneficiaries" in equal shares as specified by the agreement and judgment. (Exhibits 17, M.)
As of November 1, 2006, the defendant-father had been approved for "Voluntary Employee Term Life" through Jefferson Pilot Financial Insurance Company (Jefferson). The Jefferson policy did not exclude tobacco use. The children were "listed as beneficiaries for [this] Life policy . . . as a 50/50 split." (Exhibits 2, 13, 14.) That coverage, in the total amount of $125,000, was to become effective when Jefferson received payment of the defendant-father's premium, designated on November 1, 2006 as being $43.20 per "billing period." (Exhibits 2, 2a, 12, 14.) There was insufficient evidence, however, from which the court could reasonably conclude whether the defendant-father ever paid the premiums at issue, directly or through payroll deduction, in order to render the policy effective; therefore, the court received insufficient evidence from which it could reasonably conclude that the defendant-father was ever insured by Jefferson in compliance with the agreement and judgment. (Testimony of MD.)
On December 22, 2006, the defendant-father applied for individual insurance with New York Life Insurance Company (NYLI). He identified this coverage as a "stand alone policy," unrelated to any life insurance that might have been available through his employer. (Exhibits 2, 6, 8; Testimony of PA.) The NYLI policy afforded the defendant-father no premium discount because he was identified as a "smoker" and because of his body composition. (Exhibit 7; Testimony of DM.) At standard rates, as of December 23, 2006, the defendant-father became technically covered by a five-year term NYLI life insurance policy. (Exhibits 2, 6, 8; Testimony of DM.) That policy provided death benefits the amount of $125,000 and designated Shelby and Caroline, without distinction, as "100%" beneficiaries of the policy. The net annual premium for this coverage was $1,043.40, level for the first five years and payable in two annual installments of $521.70 each. (Exhibit 6; compare Exhibits 2, 8.) On December 22, 2006, the defendant-father had provided McKee with his check in the amount of $367.65 and his application for insurance (Exhibit 6). The NYLI policy was delivered to the defendant-father on January 5, 2007. (Exhibit 2; see also Testimony of DM.)
David McKee, a NYLI agent, initiated contact with the defendant-father on December 17, 2006, through a "cold call." (Testimony of DM.) The defendant-father's application for insurance through McKee and NYLI in December 2006 further supports the court's conclusions, described in footnote 19, concerning the lack of evidence that he complied with the life insurance orders by effectively obtaining appropriate coverage through Jefferson.
In view of the evidence as a whole, the court finds insufficient basis for crediting the defendant-father's written representations, upon his December 22, 2006 application for coverage from New York Life Insurance Company, that he then had "$125K" worth of personal insurance in effect through "Lincoln Financial (Group)." (Exhibits 2, 8.) See footnote 19.
The actual insurance policy was not in effect on that date because the underwriting process had not been completed. In reaching this determination, the court notes that portion of Exhibit 6 entitled "Key Policy Information" indicating "Policy Date: 12/23/06" and "Issue Date: 12/29/06."
The defendant-father specifically applied for NYLI to designate his domestic partner, Bonnie Genest, to serve "as Custodian to Shelby Lynne Andrelski (daughter) and Caroline Elizabeth Andrelski under the Connecticut UTMA." (Exhibits 2, 8; see also Exhibit 6.) While the plaintiff-mother apparently has strenuous objection to Genest's service in this role, she makes no claim that the issue is covered by either the agreement or judgment, and has refrained from seeking reformation of the contract.
Policy premiums increase if paid semiannually or quarterly. In his NYLI application, the defendant-father elected to pay semiannually, thus voluntarily incurring the premium increase. (Exhibits 2, 8.)
As of January 31, 2007, by way of after-tax payroll deductions for each two-week pay period, the plaintiff-mother was paying $43.68 for $336,000 worth of supplemental life insurance plus $3.38 for other life insurance. (Exhibit P.) The evidence is sufficient to permit the inference that the plaintiff-mother had consistently maintained like coverage during the months prior to January 31, 2007, as well. (Exhibit P; Testimony of MR.)
This additional fee which included $2.33 for $25,000 worth of "Spouse Life Insurance" and $1.05 for $15,000 worth of "Child Life Insurance." (Exhibits 33, P.)
On February 5, 2007, the defendant-father provided the plaintiff-mother's attorney with documentation indicating the new NYLI policy. The documentation further indicated the insurer had recognized the defendant-father's smoking status, and included a copy of a check in the amount of $154.05, dated January 5, 2007, made payable to "N.Y. Life Ins." The defendant-father filed this same documentation with the court as an "offer of proof." (Exhibits 6, 7, D; #215.)
On February 7, 2007, the defendant-father procured a home-equity mortgage in the amount of $52,000 on the home he owns with Genest. (Testimony of PA.)
On February 8, 2007, the plaintiff-mother's attorney sent the defendant-father a letter documenting her maintenance of life insurance and enclosing a pay stub reflecting payroll deductions for premiums; the plaintiff-mother admits that this correspondence did not include "an affidavit from [her employer] stating that the children are the named beneficiaries" of her policy, as required by the court's November 6, 2006 order. (Exhibits 3, P; #199; Testimony of MR.)
On March 5, 2007, the plaintiff-mother sent the defendant-father additional documentation reflecting her payroll deductions to maintain her $336,000 life insurance policy. Like the February 8, 2007 correspondence, however, this documentation contained no employer's affidavit designating the children as beneficiaries as required by the November 6, 2006 orders. (Exhibits 3, P; #199; Testimony of MR.) This documentation was sent on March 5, 2007, by certified mail with return receipt requested, to 69 David Drive in Meriden, CT, the address the defendant-father has commonly used. (Exhibits D, 14, 15, 33.) However, despite due notice of the postal services attempts at delivery, the defendant-father did not claim the correspondence at issue. He thus voluntarily and intentionally deprived himself of the information tendered on behalf of the plaintiff-mother. (Exhibit 33; Testimony of PA.)
Although the letter of transmittal bears a date of March 4, 2007, the correspondence is postmarked March 5, 2007. The court adopts the latter date for reference purposes. (Exhibit 33.)
III. ADJUDICATION OF CONTEMPT
"Connecticut procedure authorizes motions for contempt, one of the few vehicles available to enforce compliance with court orders. Connecticut Practice Book § 25-27." Lawson v. Lawson, Superior Court, judicial district of New Haven at New Haven, Docket No. FA00 0434443 (February 14, 2006, Dewey, J.). "[A] finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases . . . Billings v. Billings, 54 Conn.App. 142, 152, 732 A.2d 814 (1999)." (Emphasis added.) Rivnak v. Rivnak, 99 Conn.App. 326, 335 (2007). "In order to constitute contempt, a party's conduct must be wilful . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind." (Internal and external citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001), quoting Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). In addition, to constitute contempt, a party must have had the capacity to have honored the court's order as "[n]oncompliance alone will not support a judgment of contempt. Issler v. Issler, 50 Conn.App. 58, 64, 716 A.2d 938 (1998), rev'd on other grounds, 250 Conn. 226, 737 A.2d 383 (1999)." Bowers v. Bowers, 61 Conn.App. 75, 81, 762 A.2d 515 (2000), appeal dismissed, 258 Conn. 710, 784 A.2d 889 (2001). "Although a good faith dispute or misunderstanding over the terms of an obligation may prevent a `finding of wilfulness as a predicate to a judgment of contempt . . . [w]hether it will preclude such a finding is ultimately within the trial court's discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order.' (Internal quotation marks omitted.) [ Sablosky v. Sablosky, supra, 258 Conn. 718]." In re Leah S., 96 Conn.App. 1, 898 A.2d 855, cert. granted 280 Conn. 911, 908 A.2d 537 (2006). "`In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order.' (Emphasis in the original; internal quotation marks omitted.) Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994)." McGuire v. McGuire, 102 Conn.App. 79, 89, 924 A.2d 886 (2007).
"The burden of establishing a prima facie showing of contempt . . . falls upon the [moving party]." (Footnote omitted; external citation omitted.) Lawson v. Lawson, supra, Docket No. FA00 0434443. Conversely, "[t]he burden at a contempt hearing is on the contemnor to establish that he is unable to comply with the order of the court. Eldridge v. Eldridge, [ supra, 244 Conn. 532] . . . In order to be found in civil contempt for failure to pay financial orders, several conditions must be met: the respondent must know what the orders are; he must be able to pay the orders or not have placed himself in the position where he cannot pay the order; and he must have willfully disregarded and failed to comply with the rules of court. Mays v. Mays, 193 Conn. 261, 264, 476 A.2d 562 (1984)." Lawson v. Lawson, supra, Docket No. FA00 0434443.
A. THE PLAINTIFF-MOTHER'S MOTION FOR CONTEMPT #213
Motion #213 alleges that the defendant-father failed to comply with the November 6, 2006 orders' required provision, within thirty days, of an affidavit or other proof, "acceptable to her" indicating that he had purchased a "`smoker's' life insurance policy" and that he had "named his children as the beneficiaries under his life insurance policy." (Exhibit 3; #199.) See Part I. Upon consideration of the facts as found here and in Part II., and using the foregoing legal measures, the court finds that plaintiff-mother has met her burden of proving the defendant-father's contempt. Sablosky v. Sablosky, supra, 258 Conn. 718, Rivnak v. Rivnak, supra, 99 Conn.App. 335; Bowers v. Bowers, supra, 61 Conn.App. 81. The court therefore finds the defendant-father in contempt and herein orders him to pay certain costs and fees for the benefit of the plaintiff-mother, sufficient "to make whole a party who has suffered as a result of another party's failure to comply with the court order," as contemplated by General Statutes § 46b-87. (Quotation marks omitted.) McGuire v. McGuire, supra, 102 Conn.App. 89, citing Clement v. Clement, supra, 34 Conn.App. 647.
An evidentiary hearing is a functional and substantive predicate to a finding of contempt. See, e.g., Kelly v. Kelly, 54 Conn.App. 50, 58, 732 A.2d 808 (1999); Gattoni v. Zaccaro, 52 Conn.App. 274, 284, 727 A.2d 706 (1999) ("A judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper proceeding").
General Statutes § 46b-87 establishes, in pertinent part, that: "When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person . . ."
The facts of this case amply support this finding of contempt. As found in Part II., the plaintiff-mother has established the existence of the agreement and judgment which serve as express orders that the parties maintain life insurance to protect, support and benefit the children. She has further established the existence of Paragraphs 1 and 3 of the November 6, 2006 orders which specify the protocol for the defendant-father's provision of "proof" that he was maintaining appropriate life insurance. Through his own testimony, the plaintiff-mother has proved the defendant-father's failure to maintain the contemplated life insurance during the period of July 12 through December 22, 2006, and she has met her burden of proving that he had the financial capacity to have complied with the relevant orders during that period. She has further met her burden of proving that the defendant-father intentionally placed himself in a position that precluded his compliance with these orders until December 23, 2006 because he disingenuously chose to rely upon the value of the home to provide adequate support for his children in the event of his death, and that he did not in any case provide her with the requisite information until February 5, 2007. She has proved that any information the defendant-father provided to her or to her counsel from November 6, 2006 until February 5, 2007, concerning the status of his life insurance, was insufficient to establish compliance. Thus, the plaintiff-mother has fully met her burden of proving, by sufficient evidence, that the defendant-father knew what the agreement, the judgment and the November 6, 2006 orders required insofar as life insurance was concerned; that he was financially able to honor the orders; and that he wilfully disregarded and failed to comply with Paragraphs 1 and 3 of the November 6, 2006 orders; placing himself in contempt as alleged in motion #213. Mays v. Mays, 193 Conn. 261, 264, 476 A.2d 562 (1984)." Lawson v. Lawson, supra, Docket No. FA00 0434443.
The court's conclusion that the defendant-father did not comply with Paragraphs 1 or 3 of the November 6, 2006 orders until February 5, 2007 is consistent with the relatively contumacious behavior he has demonstrated in the past. As found in Part I., the defendant-father's reluctance to comply with the life insurance orders was noted by the court on December 20, 2004 (Taylor, J.); on October 23, 2006, when he was also found in contempt for this reason (Dunnell, J.); and on December 11, 2006 (Dunnell, J.) again found that the defendant-father was not in compliance with those orders.
The court reached these conclusions in reliance upon the facts found in Part II. The evidence clearly establish that instead of using his unemployment income, his earning capacity or his available assets to comply with the court's orders to maintain life insurance from July 12 through December 22, 2006, the defendant-father intentionally expended his resources to improve the home he shared with Genest. The court credits the defendant-father's admission that during this time period, his many credit card provided sufficient opportunities for him to charge the cost of remodeling the kitchen and family rooms, improving the ventilation, and installing wall-to-wall carpet. The court also credits the defendant-father's testimony indicating that although he had ceased employment on July 12, 2006, he collected unemployment compensation until he became employed by Northeast Beverage in November 2006, and that he also had the benefit of Genest's contributions toward household expenses, at least partially relieving him of those mundane obligations during the interim months. The defendant-father's admitted procurement of a home equity loan in the amount of $52,000 in February 2007 yields firm additional basis for the court's conclusion that in the months prior to that date, when he was likely applying for that loan, he had access to funds sufficient to pay the premium for the life insurance at issue, but that he failed to properly utilize those funds. Such conduct places him in contempt of court. Sablosky v. Sablosky, supra, 258 Conn. 718, Rivnak v. Rivnak, supra, 99 Conn.App. 335; Bowers v. Bowers, supra, 61 Conn.App. 81 (contempt properly found where obligor "had an available inheritance in the amount of $18,500 with which to comply with the court order, but intentionally and improperly diverted those funds").
In reaching this determination, the court has fully acknowledged the financial affidavits the defendant-father filed with the court on December 20, 2006 and again on January 17, 2007. (Exhibit 16; #210, #214.) The January 17, 2007 affidavit represents that the defendant-father's gross weekly wage from principal employment was $443.00; that he had $25,800 in debts owed to "Wash. Mut., Bank America, Discover, Citi, Am. Quest, and Am. Exp;" and that the "real estate" located at "69 David Dr." was valued at $260,000, with a mortgage in the amount of $255,000, leaving stated equity in the amount of $5,000.00. (#214.)
The court declines to attribute measurable weight to either financial affidavit in view of the more credible testimony concerning the defendant-father's acknowledged value of the new home; his February 2007 procurement of the home equity loan in the amount of $52,000; his access to credit card accounts that allowed him to charge the significant home improvements; and his access to the Master Card account that enabled him to take cash advances. See Part II.
Even though his employment at Staples terminated on July 12, 2006, there was insufficient evidence from which the court could reasonably conclude that the defendant-father's capacity to earn income had in any way diminished during the period at issue. Lucy v. Lucy, 183 Conn. 230, 234, 439 A.2d 302 (1981); Lawson v. Lawson, supra, Docket No. FA 00 0434443. Instead, taken as a whole, the totality of the evidence impels the conclusion that the defendant-father's decision to use his available financial resources for purposes other than for maintaining the life insurance at issue led to his volitional failure to comply with Paragraphs 1 and 3 of the November 6, 2006 orders. Thus, despite the defendant-father's argument that he had no financial ability to maintain life insurance and so was unable to comply with the court's orders, having weighed all operative variables presented by the parties, the court finds that his decision to allow the children to remain without the court-ordered coverage from July 12 through December 22, 2006, and the resultant noncompliance with the November 6, 2006 orders, was neither compelled nor coerced by external circumstances, but was wilful.
In determining that the defendant-father had the financial capacity to honor the court's orders to maintain life insurance during the time period in question and so to comply with the November 6, 2006 orders for provision "proof," the court has acknowledged "the importance of using an expansive definition of income" applicable to family matters. Bartel v. Bartel, 98 Conn.App. 706, 712, 911 A.2d 1134 (2006). In the present case, earning capacity and access to funds sufficient to pay the insurance premiums at issue, " not actual earnings, is the critical factor." Lucy v. Lucy, 183 Conn. 230, 234, [ 439 A.2d 302] (1981) . . ." (Emphasis added.) Lawson v. Lawson, supra, Docket No. FA 00 0434443. See also Bowers v. Bowers, supra, 61 Conn.App. 81 "`It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income.' Lucy v. Lucy, supra, 183 Conn. 234. `Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.' (Internal quotation marks omitted.) Unkelbach v. McNary, 244 Conn. 350, 372, 710 A.2d 717 (1998)." Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007).
Our courts have recognized that, in family matters, a party who voluntarily and unilaterally permits a life insurance policy to lapse, in violation of a court order, may be held in contempt notwithstanding claims of financial hardship which are not supported by the evidence. Billings v. Billings, 54 Conn.App. 142, 153, 732 A.2d 814 (1999). In this case, as in Van Nest v. Kegg, supra, the defendant-father's admissions support the conclusion that he intentionally failed to maintain appropriate life insurance from July 12, 2006 through December 22, 2006. (Testimony of PA.) Viewed as a whole, the defendant-father's "violation of the order requiring him to continue the life insurance policies for the benefit of his children was wilful and without good cause." Van Nest v. Kegg, supra, 70 Conn.App. 199. Having made his choice not to purchase life insurance, the defendant-father thus voluntarily placed himself in a position where he was effectively unable to timely and properly comply with Paragraphs 1 and 3 of the November 6, 2006 orders; the violation the latest court order, in the face of his capacity to honor that order, was also "wilful and without good cause." Id.; see also Bowers v. Bowers, supra, 61 Conn.App. 81.
While defendant-father's evidence and arguments highlighted his efforts at procuring life insurance that was available through his employment, he has provided insufficient basis for any conclusion that the agreement, the judgment and/or the November 6, 2006 orders could only be satisfied in this way. Such a construction of the agreement and judgment would have placed the children at significant risk for loss of the defendant-father's financial support if his untimely death occurred during a period of unemployment. Furthermore, the court file fails to reflect any efforts by the defendant-father to obtain clarification of the September 15, 2003 orders on the subject of employment-related insurance, or modification of those orders to limit his obligation to procure insurance only when he is employed, or only when his employer extends group insurance at a discounted rate. Compare Van Nest v. Kegg, 70 Conn.App. 191, 193 n. 1, 800 A.2d 509 (2002).
In finding that the plaintiff-mother has met her burden of proving contempt as alleged in motion #213, the court respectfully declines to adopt the defendant-father's vigorous claims that he did not need to maintain life insurance because he had accumulated assets enabling his estate to "be liable for the deficiency." (Exhibits 17, M; Testimony of PA.) As further discussed in Part V., there is insufficient basis for crediting the defendant-father's testimony concerning his planned reliance upon real estate equity to honor the life insurance provisions of the agreement and judgment. Even if the court should credit the defendant-father's testimony that the equity in his new home far exceeded the amount at issue, he provided no will or other testamentary documents indicating his desire that the children's property interests be made superior to other creditors of his estate, or that the children's interests were to be protected in the amount of $122,000 notwithstanding Genest's lawful claims to the property based on her joint ownership. In addition, acceptance of this aspect of the defendant-father's argument would require the court to ignore the illiquid nature of the real property at issue, which is logically incompetent to provide the children with prompt access to the cash benefits that would be available through a life insurance policy as specified in the agreement and judgment.
Notwithstanding his arguments in defense of motion #213, the defendant-father has failed to meet his burden of establishing that there is "an adequate factual basis to explain the failure to honor the court's order." Sablosky v. Sablosky, supra, 258 Conn. 718. The plaintiff-mother has met her burden of proving the defendant-father's contumacious failure to comply Paragraphs 1 and 3 of the express court orders issued on November 6, 2006, in the face of his capacity to comply, as alleged in motion #213.
B. THE DEFENDANT-FATHER'S MOTION FOR CONTEMPT #216
Motion #216 alleges that as of February 7, 2007, the plaintiff-mother had failed to comply with the court's September 15, 2003 orders requiring her to provide proof of life insurance "upon demand." (#216.) Thereby, the defendant-father ostensibly seeks to enforce the requirement that the parties to "furnish to each other upon request, (sic) proof that each is insured in the specified manner and amounts and that each has named the beneficiaries as required by this Agreement." (Exhibits 17, M.) See Part I. Upon consideration of the facts as found in Part II. and using the foregoing legal measures, the court finds that the defendant-father has not met his burden of proving the plaintiff-mother's contempt as alleged in motion #216. Accordingly, the court declines to grant the relief requested.
The evidence, taken as a whole, fails to support the defendant-father's contention that on November 3, 2006, his "fired counsel" made an unrequited demand for presentation of proof that the plaintiff-mother was maintaining life insurance as required by the agreement and related judgment of dissolution. (Testimony of PA, MD.) Moreover, even if the evidence could be interpreted as constituting the demand at issue, there is insufficient basis from which the court could reasonably find wilfulness with regard to any noncompliance on the plaintiff-mother's part. The defendant-father has not demonstrated that his adversary has a history of violating court orders from which, under some circumstances, a wilful failure to adhere to the terms of the judgment and agreement could reasonably be inferred.
See footnote 29
In the absence of wilfulness with regard to the plaintiff-mother's conduct, a contempt finding cannot stand. See Sablosky v. Sablosky, supra, 258 Conn. 718. Accordingly, the defendant-father has not met his burden of proving his allegation that the plaintiff-mother is in contempt of the order to "provide proof of life insurance on demand" as alleged in motion #216.
Even if the court has erred, and even if the defendant-father can be shown to have met this burden of proof on motion #216, he would be entitled only to a determination that the plaintiff-mother had violated a technical, rather than a substantive, provision of the court's orders. The defendant-father has not questioned the fact that the plaintiff-mother has consistently maintained the life insurance to protect the children, as contemplated by the September 15, 2003 agreement and judgment. Accordingly, even if the plaintiff mother had technically violated the September 15, 2003 order as alleged, her violation has not been shown to have placed the children at financial risk to in the event of her untimely death. Under these circumstances, it would be neither fair nor just to award financial redress to the defendant-father.
C. THE DEFENDANT-FATHER'S MOTION FOR CONTEMPT #217
Fairly read, the defendant-father's motion for contempt #217 asserts that as of February 7, 2007, the plaintiff-mother had failed to comply with Paragraph 2 of the November 6, 2007 orders which obligated her to provide him "Every 90 days . . . with a pay stub receipt which shows that the premium" for her life insurance has been paid. (Exhibits 17, M.) Motion #217 further asserts that the plaintiff mother failed to comply with Paragraph 4's obligation to provide the defendant-father "Every 90 days thereafter . . . with an affidavit from [her employer] stating that the children are the named beneficiaries" of her life insurance policy. (Exhibits 17, M.) Upon consideration of the facts as found in Part II, and using the foregoing legal measures, the court finds that although the plaintiff-mother has technically violated the orders at issue, the defendant-father has not met his burden of proving the essential element of wilfulness. See Sablosky v. Sablosky, supra, 258 Conn. 718. Accordingly, the plaintiff mother cannot be found in contempt.
As found in part II., the plaintiff-mother's attorney sent the defendant-father a pay stub on February 8, 2007 reflecting her employer's deductions for life insurance premiums. (Exhibit P.) The ninety-day period applicable to Paragraph 2 expired on or about Sunday, February 4, 2007. (Exhibit 3, #199.) The plaintiff-mother thus provided her pay stub "receipt" to the defendant-father in near-compliance yet just outside the court's clearly-established time frame. As also found in Part II., the plaintiff mother sent the defendant-father further documentation on March 5, 2007 reflecting her payroll deductions to maintain $336,000 worth of life insurance. This information was timely provided, as the one hundred and twenty-day period following the November 6, 2006 orders expired on or about Tuesday, March 6, 2007. However, like the February 8 correspondence, the documentation sent on March 5, 2007 failed to include the requisite employer-affidavit designating the children as beneficiaries. (Exhibit 33.) Under these circumstances, notwithstanding the plaintiff-mother's March 5, 2007 correspondence to the defendant-father, she technically violated Paragraph 4's requirement for provision of such an affidavit within the specified time frame.
Reasonably read, Paragraph 4 of the November 6, 2006 orders require compliance within 90 days following the 30-day schedule established by Paragraph 3. (Exhibit 3, #199.) See Part I. See also Conn. Code Evid. § 2-1.
Technically, then, the plaintiff-mother has in two ways violated the orders issued by the court (Dunnell, J.) on November 6, 2006. Notwithstanding these technical violations, however, the defendant-father has failed to provide evidence sufficient to support a finding that the plaintiff-mother wilfully failed to comply with either Paragraph 2 or 4 of these orders. In determining that even the circumstantial evidence fails to support a finding of wilfulness, the court has remained aware that unlike the defendant-father, the plaintiff-mother has never been shown to have allowed the life insurance to lapse. Unlike the defendant-father, the plaintiff-mother has never previously been identified as having violated court orders with, or without, an adjudication of contempt. Unlike the defendant-father, then, the plaintiff-mother has not presented any pattern of failure to adhere to court orders. In addition, despite her presently identified technical violations, there is no evidence from which the court could conclude that the plaintiff-mother has ever placed the children at risk that, in the event of her untimely death, they would be left without access to her share of their financial support.
Moreover, as found in Part II., the defendant-father failed to make reasonable efforts to retrieve the March 5, 2007 correspondence from the post office. Thus, even if the plaintiff-mother had provided an affidavit from her employer identifying the children as beneficiaries, the defendant-father's intervening conduct would have intentionally prevented him from accessing this information.
See footnote 29.
Thus, despite her noncompliance, the court finds insufficient basis for inferring that the plaintiff-mother wilfully violated either Paragraph 2 or 4 of the orders at issue. Wilfulness is a necessary requisite to a contempt finding, as discussed in Part III.B. See Sablosky v. Sablosky, supra, 258 Conn. 718. As the defendant-father has not met his burden of proving this critical element of his contempt allegation, motion #217 must be denied.
IV. DEFENDANT'S ESTATE-BASED CLAIMS
The defendant-father defends the plaintiff-mother's allegations of contempt in part by urging the court to find that the agreement and judgment do not mandate maintenance of a life insurance policy to protect his children in the specified amount of $122,000. Instead, he argues that the agreement and judgment expressly contemplate that in lieu of maintaining such policy, he may rely upon assets accrued in his estate so that, in the event of his death, the children would have access to $122,000 of the value therein. He would further have the court find that his failure to comply with Paragraph 1 and/or 3 of the court's November 6, 2006 orders was thus due to an excused and anticipated failure to maintain life insurance during the time period at issue. For the reasons stated herein, the court declines to accept this argument, and finds that it provides insufficient defense to motion #213's allegations of contempt. See also Part III.A.
The defendant-father's counsel previously presented this argument to the court on October 23, 2006 in defense of contempt motion #190. (Exhibit 4; Tr. 10/23/06.) At the time, the trial court (Dunnell, J.) discounted that aspect of the defendant-father's argument, and instead issued facilitating orders with regard to the express obligation to maintain a life insurance policy.
To respond to the defendant-father's submission, the court must examine the terms of the agreement, which is, in effect, a contract between the parties. This examination presents a question of law. In such circumstances, the court's method of analysis ". . . is well settled. Where a judgment incorporates a separation agreement, the judgment and agreement should be construed in accordance with the laws applied to any contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law . . . Russell v. Russell, 95 Conn.App. 219, 221-22, 895 A.2d 862 (2006)." Krane v. Krane, 99 Conn.App. 429, 431, 913 A.2d 1143 (2007).
In this case, the life insurance provisions of the agreement and judgment are clear, unambiguous, and definitive. As found in Part I., Paragraphs L.1. and 2 of the agreement and judgment both express, without ambiguity but with clarity, exactly what the parents are required to do in order to ensure that their children are financially protected in the event of either's untimely death; each parent is obligated "to maintain insurance covering [his or her] life in a principal sum of $122,000. The children . . . shall be named in said insurance as irrevocable beneficiaries as long as either is alive and under the age of 23 years." (Emphasis added.) (Exhibits 17, M.) While these paragraphs do not use the term "policy," the quantified benefit clearly anticipates $122,000 a death benefit available through a contract of insurance. As such, the requirement for maintaining "insurance" is unambiguous. The judgment contains "definitive contract language" that requires no interpretation.
To find that the defendant-father did not have to maintain an insurance policy but that he could, instead, rely upon assets accrued in his estate, the court would have to reject these clear and unambiguous of Paragraph L.1. and 2 and instead accept the strained and tortured analysis of the life insurance provisions as proffered. While thereby the defendant-father could avoid a finding of contempt, the court finds insufficient legal basis for disregarding the language expressly obligating the parents to maintain $122,000 of insurance for the benefit of the children. Krane v. Krane, 99 Conn.App. 429, 431, 913 A.2d 1143 (2007).
The defendant-father further argues that his actions in relying upon the assets in his supposed estate, forgoing the opportunity to maintain an appropriate life insurance policy, were not wilful, and he should not be held in contempt because he believed that the terms of the agreement and judgment anticipated such election. See Dowd v. Dowd, 96 Conn.App. 75, 82, 899 A.2d 76 (2006). At the very least, the defendant-father urges the court to conclude that he engaged in a good faith misunderstanding concerning his life insurance obligations. As found in Part III.A., the court declines to credit any aspect of the defendant-father's testimony that might support the determination that he misunderstood his obligation to maintain $122,000 of life insurance. Moreover, the self-serving nature of the defendant-father's arguments do not enhance its legal or factual viability. Rather, as found in Part II. and as discussed in Part III.A., the defendant-father voluntarily chose not to maintain the requisite life insurance from July 12 through December 22, 2006 so he could use his available financial resources for other purposes instead of complying, as he could have, with the court's clear, unambiguous orders.
It is axiomatic that "[a]n order of the court must be obeyed until it has been modified or successfully challenged." (Internal quotation marks omitted.) Sablosky v. Sablosky, supra, 258 Conn. 719, citing Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994); see also O'Connell v. O'Connell, 101 Conn.App. 516, 521-22, 922 A.2d 293 (2007). As found in Part I., the court file reflects an abundance of motions filed by the defendant since the entry of judgment on September 15, 2003. The defendant-father's history of sometimes maintaining life insurance, his willingness and ability to access the court for consideration of other claims, and his failure to do so with regard to the estate aspects of the agreement and judgment during the summer and fall of 2006, all supports the court's determination that defendant-father was, at all times, aware that any contingency clause related to his estate would not relieve him of his responsibilities with regard to purchasing insurance.
Rather than presenting a good faith dispute or legitimate misunderstanding of the provisions regarding utilization of the estate assets in the event that life insurance had inadvertently lapsed or become unavailable, this aspect of the defendant-father's opposition to the plaintiff-mother's contempt motion constitutes "a creative but meritless interpretation of the agreement." Dowd v. Dowd, supra, 96 Conn.App. 83. Even if the court should accept his construction of the agreement and judgment, the defendant-father has presented insufficient evidence from it could reasonably be concluded that he had intended to or had in fact accumulated sufficient assets in his life estate to satisfy his obligation to provide $122,000 worth of financial protection for his children during the period in question. Notwithstanding his assurances that the equity in his home would have satisfied this aspect of his child support, the defendant-father has failed to adequately account for any primary interests of his creditors, including the lenders holding mortgages on the property; the vicissitudes of the real estate market; the illiquid nature of this asset; or Genest's joint ownership of the new home. The lack of supporting evidence renders the defendant-father's proposed construction of the agreement and judgment untenable and inconsistent with his obligation to continue to support the children financially after his death as contemplated by the agreement, the judgment, and the November 6, 2006 orders. See Van Nest v. Kegg, supra, 70 Conn.App. 199.
Here, the court has specifically found that the defendant-father was aware of his obligations to maintain a life insurance policy through the agreement and judgment; he was clearly aware of the court's orders concerning communication about that policy as imposed on November 6, 2006. As found in Part III.A., the defendant-father's failure to comply with Paragraphs 1 and 3 of the express November 6, 2006 orders was wilful, based on his wilful conduct in failing to maintain the policy at issue from July 12 through December 22, 2006. The defendant-father has failed to establish through credible evidence that he avoided the obligation to maintain life insurance in reliance upon language in the agreement and judgment that expressly permitted him to utilize this financial plan, or that was unclear or ambiguous. Dowd v. Dowd, supra, 96 Conn.App. 82-83. Moreover, even if the court could find that the defendant-father did not comprehend, disputed or misunderstood the terms of the dissolution order, "[t]his does not mean . . . that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt." Dowd v. Dowd, supra, 96 Conn.App. 82, citing Sablosky v. Sablosky, supra, 258 Conn. 718. Under all the circumstances presented, this aspect of the defendant-father's defense to the plaintiff-mother's contempt motion #213 fails to provide the defense he claims.
V. ATTORNEYS FEES AND COSTS CT Page 19694
The parties both claim attorneys fees and costs for prosecution and defense of the contempt motions heard by this court; the plaintiff-mother also claims fees related to motion #190. In considering this issue, the court has reviewed the evidence as a whole, including the parties' testimony concerning their financial status, other evidence relating to actual income and earning capacity, the affidavit of counsel fees and costs, and the parties' stipulation concerning attorneys fees. (Exhibit 32, Testimony of PA, MR.) As explained in Parts III.B. and III.C., the court declines to grant the relief requested by the defendant-father. However, having found the defendant-father in contempt, the court in part grants the plaintiff-mother's motion for attorneys fees and costs pursuant to § 46b-87.The plaintiff-mother's fee request for payment of the $1,016.67 in attorneys fees awarded on October 23, 2006 constitutes a tacit motion in aid of judgment. As found in Part I., the court concluded on that date that the defendant-father had violated the terms of the judgment by failing to have the requisite life insurance policy in timely effect. (Exhibit 4, Tr. 10/23/06.) The court ordered the contemnor-father to pay the plaintiff-mother's attorneys fees in the amount of $1,016.67 for the insurance-related portion of the hearing. (Exhibit 4, Tr. 10/23/06 p. 28, 42.) If not yet satisfied, this award remains an order of the court. Sablosky v. Sablosky, supra, 258 Conn. 719; Mulholland v. Mulholland, supra, 229 Conn. 649; O'Connell v. O'Connell, supra, 101 Conn.App. 521-22.
See Avalonbay Communities v. Planning Zoning Commission, 260 Conn. 232, 251 n. 18, 796 A.2d 1164 (2002) (proper for party to invoke the trial court's continuing jurisdiction to postjudgment orders).
On that date, counsel for the defendant-father protested the award of attorneys fees. The court (Dunnell, J.) declined to accept this argument, and placed the defendant-father on notice regarding his appellate rights. (Exhibit 4, Tr. 10/23/06 p. 45.) No appeal was taken and no timely motion to open this judgment was presented. Thus, "[s]imply stated, court orders must be obeyed until modified or successfully challenged. Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994)." Lawson v. Lawson, supra, Docket No. FA 00 0434443.
On March 27, 2007, the plaintiff-mother's counsel submitted an Affidavit of Counsel Fees (affidavit) related to motions #213, #216 and #217. (Exhibit 32.) That affidavit also identified costs incurred in serving subpoenas and for procurement of transcripts. The hearing was continued until July 30, 2007. On March 31, 2007, the parties stipulated that $200 represents a customary hourly fee for matrimonial lawyers. (Exhibit 32, Testimony of PA.) While the defendant-father has objected to portions of the affidavit, its content of the affidavit remains available for the court's consideration of this evidence of fees and costs incurred by the plaintiff-mother as the result of the defendant-father's contumacious behavior outlined in motion #213, and in defense of his motions #216 and 217. Dowd v. Dowd, supra, 96 Conn.App. 86-87; see also § 46b-87. (Exhibit 32.)
Evidence related to a number of other motions was also presented to the court on March 27, 2007. Those other motions were resolved by this court's issuance of its Memorandum of Decision (#225) on April 2, 2007. See Memorandum of Decision Re Plaintiff's Post-judgment Motion for Order Re Vacation Periods and Notice of Summer Vacation Timing (#218), and Defendant's Objection to Post-judgment Motion for Order Re Vacation Periods and Notice of Summer Vacation Timing (#219) in Andrelski v. Andrelski, Superior Court, judicial district of New Haven at Meriden, Docket No. NNI-FA03-0283509-S (April 2, 2007, Rubinow, J.).
In determining the amount of attorneys fees to award, the plaintiff-mother seeks to sanction the. defendant-father as contemplated by Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007). That opinion reinforced the rule that the court has "the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct . . ." (Emphasis added.) Id., 353. The court fully acknowledges that the defendant-father has been adjudicated a contemnor on prior occasions and that he has, at other times, engaged in contumacious behavior regarding life insurance issues while avoiding a finding of contempt. Nonetheless, the court respectfully declines to conclude that in failing to timely provide proof of life insurance or even to maintain the insurance contemplated by the judgment of dissolutions, the defendant-father has thereby "engaged in egregious litigation misconduct" within the context of Ramin v. Ramin. Id., 357. Here, unlike in Ramin v. Ramin, the court has considered the plaintiff-mother's contempt allegations, has adjudicated the defendant-father in contempt, and thus has ample basis for awarding attorneys fees to the plaintiff-mother based upon the principles of § 46b-87.
Ramin v. Ramin; 281 Conn. 324, 327, 915 A.2d 790 (2007); addressed the trial court's failure to act upon a party's contempt motion brought to enforce compliance with discovery. The Ramin rule "means only that, when a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorneys fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorneys fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court's other financial orders." Ramin v. Ramin, supra, 281 Conn. 357.
Concomitant with this finding, while awarding attorneys fees and costs as contemplated by § 46b-87, the court declines to "order monetary punitive sanctions against the Defendant based on his continual disregard and willful contempt of this Court's orders" and declines to order incarceration, notwithstanding the plaintiff-mother's requests for this relief presented through motion #213.
In determining that the defendant-father should pay attorneys fees and costs to the plaintiff-mother in response to motion #213, notwithstanding the fact that the court is not here required to balance the parties' respective financial status, the court has considered not only the defendant-father's history of relative noncompliance with the life insurance obligations but has also considered other relevant factors such as: his admitted ability to have purchased residential real estate; his household contributions from Genest; his capacity to make substantial improvements his home; and his procurement of a home equity loan; and the relative disparity of the parties' income. See Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997); Ramin v. Ramin, supra, 281 Conn. 357; Medvey v. Medvey, 83 Conn.App. 567, 575, 850 A.2d 1092 (2004). Having found the defendant-father in contempt, the responsive orders have been fashioned in compliance with the terms of § 46b-87 and with the lessons of the case law that consistently acknowledges the court's "broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order" even in the absence of a finding of contempt. Avalonbay Communities v. Planning Zoning Commission, 260 Conn. 232, 243, 796 A.2d 1164 (2002). See also Clement v. Clement, supra, 34 Conn.App. 647; Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988).
Using the foregoing measures, the court finds the plaintiff-mother's claim for attorneys fees related to her motion for contempt #190, incurred on November 6 through December 11, 2006 in the amount of $975.00, to be fair and reasonable. The court finds the plaintiff-mother's request for costs related to services of state marshals, in the amount of $130.34, to be fair and reasonably related to the successful prosecution of contempt motion #213. The court further finds the plaintiff-mother's claim for attorneys fees, incurred during the period of January 11 through March 27, 2007 in the amount of $1,816.67, to be fair and reasonably related to the successful prosecution of her contempt motion #213. However, in view of the technical violations noted in Parts III.B. and C., the court declines awarding attorneys fees to the plaintiff-mother for the July 30, 2007 court appearance. (Exhibit 32.)
In reaching this determination, the court reasonably infers that the plaintiff-mother submitted a claim for related counsel fees incurred on January 11, 2007 and January 28, 2007, notwithstanding the scrivener's references to January 11, 2006 and January 28, 2006 upon Exhibit 32.
The court reaches this determination without in any way contesting the validity of the charges presented by counsel for the plaintiff-mother.
VI. ORDERS
The court issues the following orders in response to the evidence including the GAL's opinions concerning the children's best interests.
The remedial orders imposed by the court (Dunnell, J.) on November 6, 2006 are now, as a matter of law, merged into these orders. Smith-Lawler v. Lawler, 97 Conn.App. 376, 379, 904 A.2d 1235 (2006), citing Sweeney v. Sweeney, 271 Conn. 193, 202, 856 A.2d 997 (2004); see also Tobey v. Tobey, 165 Conn. 742, 745-46, 345 A.2d 21 (1974).
A. MOTION FOR CONTEMPT #190. 1. Attorneys Fees (up to and including October 23, 2006):
On or before January 1, 2008, if he has not previously made payment in this amount, the defendant-father must pay the plaintiff-mother $1,016.67 as attorneys fees for the prosecution of motion #190.
2. Attorneys Fees (November 6 through December 11, 2006):
On or before January 15, 2008, the defendant-father must pay the plaintiff-mother $975.00 as additional attorneys fees for the prosecution of motion #190.
B. MOTION FOR CONTEMPT #213. 1. Attorneys Fees and Costs:
The defendant-father must pay the plaintiff-mother the sum amount of $1,947.01 as attorneys fees and costs for the prosecution of motion #213, representing $1,816.67 in attorneys fees and $130.34 in costs. This amount must be paid as follows:
a. $750.00 on or before January 31, 2008;
b. $750.00 on or before February 28, 2008;
c. $447.01 on or before March 31, 2008.
CT Page 19697
2. Maintenance of Life Insurance
a. The defendant-father must maintain his present NYLI life insurance policy, or any like policy in lieu thereof, in full force and effect, sufficient to meet the terms of the agreement and judgment.b. The defendant-father must maintain lawful employment sufficient to pay the due premiums for his present NYLI life insurance policy, or any like policy in lieu thereof, sufficient to meet the terms of the agreement and judgment.
c. The plaintiff-mother must maintain her present employment-related life insurance policy, or any like insurance policy in lieu thereof, that is sufficient to meet the terms of the agreement and judgment.
d. The plaintiff-mother must maintain lawful employment sufficient to pay the due premiums for her present employment-related life insurance policy, or any like insurance policy in lieu thereof, that is sufficient to meet the terms of the agreement and judgment.
3. Notification Regarding Life Insurance
a. No party may permit his or her present life insurance policy to lapse unless a like policy is in full force and effect in lieu thereof, sufficient to meet the terms of the agreement and judgment.
b. If either party procures a new life insurance policy in lieu of his or her present life insurance policy, he or she must immediately and in writing, by correspondence deposited into first class mail and by attachment to email, notify the other party of the name and address of the carrier providing the new policy.
4. Verification of Maintenance of Life Insurance for the Children's Benefit
a. The parties are to attend a hearing (the hearing) at the Meriden Superior Court at 2 p.m. on December 10, 2007.
b. No later than seven days prior to the hearing, the plaintiff-mother or her counsel must draft an authorization forms (authorization) for each party to execute at the hearing. These authorizations will direct any and all entities providing either party with the life insurance coverage that was the subject of the agreement and judgment to, upon request, deliver to the parties or their designee documentation reflecting the status of the life insurance at issue. That documentation shall include but is not limited to:
(1) verification that the party is maintaining life insurance;
(2) the effective dates of coverage;
(3) the cost of coverage;
(4) the status of payment for coverage;
(5) limitations or exclusions for coverage;
(6) whether the party is maintaining insurance in the principal sum of $122,000;
(7) and whether the children have been named as irrevocable beneficiaries, in equal shares, of protection in the amount of $122,000.
c. No later than ten days prior to the hearing, the plaintiff-mother or her counsel will deliver a copy of this draft authorization to the defendant-father, by deposit into first class mail and by attachment to a transmittal email.
d. At the hearing, in the presence of the court, the parties may present any objections to the draft authorization.
e. Upon the court's approval of the draft authorization or any amendments thereto, the parties must execute the authorizations and exchange them in the presence of the court.
f. The parties may use the authorization no more than four times a year to procure information related to the other parent's maintenance of life insurance coverage, or their failure to maintain that coverage, as called for by the agreement and judgment.
g. The parties must bear the cost of fees for any attorneys fees they may incur in the utilization of this authorization for purposes of procuring information related to the other parent's maintenance of life insurance coverage, or failure to maintain that coverage.
h. The parties must bear any charges imposed by the life insurer and/or his employer for compliance with the authorization's request.
i. The parties shall share equally in such reasonable attorneys fees that may be incurred in the preparation of the draft authorization.
C. MOTION FOR CONTEMPT #216.
The movant having failed to meet his burden of proof, no additional orders are issued.
D. MOTION FOR CONTEMPT #217.
The movant having failed to meet his burden of proof, no additional orders are issued.