Opinion
No. FA98-0168258S
February 23, 2010
MEMORANDUM OF DECISION RE MOTIONS ## 288, 290, 294, 295, 299, 311, 314, 322 and 324
The marriage of the parties was dissolved by decree of this court on March 20, 2002, at which time the court filed a Memorandum of Decision (#248). The parties are the parents of three children, to wit: Victoria Kaitlin ("Kate"), born January 24, 1989; Timothy, born April 17, 1990; and Delaney, born February 8, 1993. The two oldest children have now reached their majority and are students at college, while the youngest is a sophomore at Wilton High School. She lives primarily with the defendant wife ("wife"), who has resumed the use of her birth name, Christina Rikhoff.
The relevant portions of the decree ordered the husband to pay to the wife, time-limited, base alimony in the amount of $3,000.00 per month, together with a percentage of any bonus. Alimony terminates on March 31, 2014, unless earlier terminated by the death of either party or the remarriage of the wife. It is nonmodifiable as to term. (Order, ¶ 3.) The court further ordered child support in the amount of $3,000.00 per month, with an adjustment consistent with the Child Support Guidelines as each child reached their majority. (Order ¶ 4.) In addition, the court ordered a contribution by both parties to three specific categories of expenses for the minor children, in brief: (1) horseback riding activities through the Wilton Riding Club, (2) sports, music, and summer camp, and (3) testing and tutoring expenses for the two younger children (who suffer from learning disabilities) as may be recommended by their school. (Order, ¶ 4, sub ¶¶ A, B, and C.) Under subparagraph A, the husband's obligation was limited to one-half of the horse-related expenses up to a maximum contribution of $2,500.00 per year. The horse is no longer owned by the family. His contribution under subparagraph B is one-half of the first $1,500.00, with a contribution of 25% above that. Finally, his contribution toward necessary tutoring for the two younger children pursuant to subparagraph C, is one-half. The terms of the original decree have remained unmodified to date.
The wife, who at the time of the dissolution, was not employed outside of the home, has since obtained such employment, first as a substitute teacher in 2003 and 2004, and then, starting in 2005, as a Special Education Aide in the Wilton School system, where, based upon a twelve-month period, she currently earns, on average, $1,950.00 per month, although she is actually paid over ten months. The plaintiff husband ("husband"), who had been employed nearly continuously since the date of the decree, lost his job, not once, but twice, during the pendency of these proceedings, but he is currently re-employed. To his credit, each and every time that the husband lost his job, he did not sit idle, but vigorously and successfully sought and obtained employment within a relatively short period of time. He currently earns $10,417.50 per month.
Dating from approximately six months following the entry of the decree, the husband's financial obligations have been paid through wage withholding, monitored by the Bureau of Support. (Exhibit #1.) The evidence supports a finding that the payment of his base alimony and child support obligations have, for the most part, been consistent and timely, and that the trouble has been with the payment of percentages from his bonuses, owing to his changes of job and some confusion on the part of his employers as to how to deal with the issue, compounded by the consistently poor communication between the parties. Remarkably, while the wife's initial claim was in excess of $240,000.00, during the course of the trial, the parties stipulated that the actual arrearage of alimony and child support is only $11,906.13. In fact, for three of those years, he actually overpaid his obligation. (Exhibit #4.) The husband asserts that the wife has acted in bad faith by making such inflated claims, however, her counsel countered that these were not claims, but rather were "exchanges of calculations." The wife claims interest and attorneys fees.
In addition to alimony and child support, the wife claims that the husband has failed to meet his obligation to contribute to the extra-curricular activities, tutoring, and unreimbursed medical expenses of the children. As the court observed in its original Memorandum of Decision, each party had "very different philosophies with regard to family finances." Nothing has changed. The wife continues to hew to the unreasonable belief that there are no limits when it comes to spending on the children, and she cannot understand why her former husband cannot accept that. Consequently, her long-time practice of mingling legitimate charges with others not covered by the court order, has translated into unreasonable and unwarranted demands upon the husband throughout the post-judgment period. Thus, she has created a fiscal muddle which has compounded with each passing year. In addition, her concomitant anger and frustration with the husband for his perceived failure to meet his "obligations," unnecessarily prolonged the discovery process and increased attorneys fees exponentially with, in the end, very little to justify the sturm und drang. In short, much of her problem is self-created and could easily been avoided had she been willing to accept the practical realities. Perhaps sensing the futility of it from long experience, the husband has not helped the situation by avoiding meaningful communication with the wife, thus fueling her frustration and suspicion. There is also a question as to whether or not he has consistently provided the wife with sufficient updates as required.
The wife has filed a series of contempt motions in order to secure what she believes the husband owes her for support-related issues pursuant to the decree from 2005 to date. For his part, the husband has moved for a modification of his alimony and child support obligations by way of a motion dated May 30, 2007 (Exhibit Y). The basis for his claim is the fact that two of the children have now reached their majority and graduated from high school, the wife's employment, and the reduction of his income. He seeks an order retroactive to the date of service of the motion. As set forth above, these motions have taken a long time to reach the point of a hearing, primarily due to extensive discovery, and thus they cover a considerable period of time. In his testimony, State Marshal Sullivan was not clear as to the exact day of service, or if it was in hand or abode, but he was adamant that service was made. Moreover, the husband paid Sullivan for his services by check dated June 15, 2007. (Exhibit TT.) Thus the evidence, based upon the testimony of the State Marshal Sullivan and Exhibit Y, supports a finding that the motion was, in fact, served upon the wife. However, he was unable to substantiate either the date or method of service. Although the wife disputes the fact of service, the court found the marshal to be credible.
During the course of the trial, in addition to the sums already agreed upon, the wife claims that for the period from 2005 to date, the husband owed her $13,634.00 for extra-curricular activities for all three children, $3,870.00 for tutoring expenses for the two younger ones, and $2,413.00 for unreimbursed medical expenses, all before her claims for interest and attorneys fees. However, in considering the voluminous number of exhibits, as well as the testimony of both parties, it is clear that her claims are inflated, principally due to the fact that certain expenses are outside of the scope of ¶¶ 4B and C of the Separation Agreement, or the fact that the child in question had reached his or her majority, or, in some instances, where the husband had already made a contribution.
Likewise, for his part, the husband claims that he has largely overpaid his obligation to contribute to the children's activities and tutoring. In this assertion, he is supported by the evidence as to the sporting activities. In fact, upon examination of the evidence, in particular Exhibits XX, YY, ZZ, and AAA, it is clear that he has made voluntary payments well over and above his obligation for some items, notably for automobile expenses, college applications, and a special educational program for Kate, although they were outside the scope of ¶¶ 4B and C. In taking all this into consideration, the court finds that the husband is entitled to an overall credit in the amount of $345.77 regarding his contribution toward the children's activities, and that there is an arrearage regarding tutoring in the amount of $1,300.00. As to the unreimbursed medical expenses, after taking into account payments by the husband, there still remains an arrearage in the amount of $1,876.97 pursuant to ¶ 9 of the Order of the court. In addition, the parties have also stipulated that the arrearage regarding Wilton Riding Club activities is $6,319.00. (Exhibit #6.)
The attorneys for both parties have done yeoman's work in trying to marshal the facts, and have likewise done an excellent job presenting the case to the court. Moreover, despite the fact that the problems inherent in this case were not of their making, they exhibited the high degree of professionalism which the court expects and appreciates. However, while the court appreciates their efforts, an award of attorneys fees to either party is not appropriate under all of the facts and circumstances.
The court heard the parties over all or portions of nine trial days. At the conclusion, the court requested a current financial affidavit from each party and gave them an opportunity to examine, and, if necessary, challenge the opposing side. After due inquiry by the clerk, neither party elected to do so, and the court considered the evidence closed as of December 1, 2009.
FINDINGS
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes § 46b-56, § 46b-62, § 46b-82, § 46b-84, § 46b-86, and § 46b-15a, including the Child Support and Arrearage Guidelines Regulations, and § 25-26 through 25-30 of the Connecticut Practice Book, hereby makes the following findings:
1. That the date of the last alimony and child support order was March 20, 2002; and that therefore, any modification must be based upon a substantial change of circumstances since March 20, 2002. Borkowski v. Borkowski, 228 Conn. 729, 741-43 (1994); Sanchione v. Sanchione, CT Page 5729 173 Conn. 397, 408 (1977), Sardilli v. Sardilli, 16 Conn.App. 114, 119 (1988).
2. That the evidence supports a finding that there has been a substantial change of circumstances since the date of the last order in that: (1) the wife has become employed outside the home, (2) the husband's income has declined substantially, and (3) two of the children have reached their majority.
3. That under normal circumstances, an award of child support may be modified upon the demonstration of a substantial change of circumstances, unless the order itself clearly precludes modification. General Statutes § 46b-86(a); Borkowski v. Borkowski, 228 Conn. 729, 737 (1994); Spencer v. Spencer, 71 Conn.App. 475, 481 (2002); Schorsch v. Schorsch, 53 Conn.App. 378, 382 (1999); that an award of child support may also be modified upon a showing that the order substantially deviates from the Child Support Guidelines; and that "substantial deviation" is defined as a variance of 15% or more. General Statutes § 46b-86(a).
4. That, in general, a child support order cannot be retroactively modified, except in the limited circumstances set forth in General Statutes § 46b-86(a); that the only exceptions being awards governed by General Statutes § 46b-56c, and 46b-84(b) and (c); and that where the payor has overpaid his obligation, he or she is entitled to a credit for the difference between the actual payment and the effective date of the order. Stein v. Stein, 49 Conn.App. 536, 540 (1998).
5. That the testimony and evidence supports a finding that service of the motion for modification was made upon the wife; that while it is within the discretion of the court to grant a retroactive modification to the date of service. Shedrick v. Shedrick, 32 Conn.App. 147, 151 (1993); that, however, the husband was unable to substantiate either the date or the method of service; and that, therefore, under all the circumstances, it is equitable and appropriate to grant relief to the husband retroactive to April 1, 2009.
6. That alimony and child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001); that in making an award of child support, the court must follow the Child Support Guidelines in order "to determine a presumptive child support payment, which is to be deviated from only under extraordinary circumstances." Golden v. Mandel, 110 Conn.App. 376, 386 (2008); and that the court may exercise its discretion in the award of child support," . . . in any proceeding for the establishment or modification of a child support award, the Guidelines `shall be considered in addition to and not in lieu' of the criteria established in General Statutes 46-84(b). In addition, the Guidelines themselves list several factors that may be relevant to the determination of [the] support amount . . ." General Statutes § 46b-215b(b); Battersby v. Battersby, 218 Conn. 467, 471-72 (1991).
7. That the net income of the wife is $408.00 per week ($1,768.00 per month); and that the net income of the husband is $1,626 per week ($7,046.00 per month).
8. That based upon the net income of the parties, the presumptive basic child support is $321.00 per week; and that the husband's share is $257.00 per week ($1,114.00 per month).
9. That it is equitable and appropriate to modify the husband's alimony obligation to $2,486.00 per month, retroactive to April 1, 2009, with a further reduction to $2,000.00 per month effective April 1, 2012.
10. That the evidence supports a finding that, by agreement, there is an arrearage in alimony and child support in the amount of $11,906.12; that, also by agreement, there is due and owing the sum of $6,319.00 for charges connected with the Wilton Riding Club; that the evidence demonstrates that the husband is entitled to a credit in the amount of $345.77 as and for his overpayment for his share of the children's sports activities; that there is an arrearage regarding the husband's contributions to the tutoring expenses for the two younger children in the amount of $1,300.00; that there is an arrearage in the amount $1,876.97 in unreimbursed medical bills for the minor children; and that the total arrearage due and owing for the foregoing is $21,056.32.
11. That said arrearage accumulated without the fault of the husband and the husband is not therefore in contempt; that General Statutes § 46b-87 permits the court, in its discretion, to make an award of reasonable attorneys fees to the husband, however, under all the circumstances, in particular, the existence of an arrearage, the court finds that it would not be appropriate to make such an award, and it declines to do so.
12. That due to the modification of the existing court orders, the husband is entitled to receive a credit for overpayment of his alimony and support obligation retroactive to April 1, 2009; that the evidence supports a finding that he has made timely payments of $6,000.00 a month through October 2009, resulting in a credit of $16,800.00 ($2,400 x 7); that to the extent that he has paid in excess of the modified order from November 1, 2009 through February 2010, he shall be entitled to an additional credit of up to $2,400.00 per month; and that in that event, should his credit exceed the above-found arrearage, he shall be entitled to reduce his alimony payment by $250.00 per month until such time as the credit shall be exhausted.
13. That, pursuant to General Statutes § 46b-62, where there is a breach of a court order, but no finding of contempt, it is within the discretion of the court to award reasonable attorneys fees, so long a party against whom they are assessed is given an opportunity to challenge the reasonableness of the fees. Dobozy v. Dobozy, 241 Conn. 490, 499-500, (1997); Sardilli v. Sardilli, 16 Conn.App. 114 (1988); and Nelson v. Nelson, 13 Conn.App. 355 (1988); that, in general, "punishment of a litigant should play no role in the determination of the issue of awarding attorneys fees." Blake v. Blake, 211 Conn. 485, 488 (1989), however, where one party has engaged in "egregious litigation misconduct," the court may award attorneys fees. Ramin v. Ramin, 281 Conn. 324, 357 (2007); and that under all the facts and circumstances, neither the husband nor the wife has engaged in such egregious litigation misconduct.
14. That "there is no statutory prohibition against awarding interest on a judgment in domestic relations cases." LaBow v LaBow, 13 Conn.App. 330, 353 (1988); that it rests with the sound discretion of the court after a finding that "the detention of the money was wrongful under the circumstances." Dowd v. Dowd, 96 Conn.App. 75, 86-87 (2006); and that, however, under all the facts and circumstances of this case, in particular, the wife's unreasonable demands and the extensive discovery it precipitated, the husband's detention of said monies was not wrongful.
ORDER
The foregoing motions having been heard, for the reasons set forth above, the wife's Motions for Contempt and Amended Motion for Contempt dated March 27, 2008 (##290 and 294), Motion for Modification dated July 9, 2008 (#299), and Revised Motion for Contempt dated March 20, 2009 (#322), are HEREBY DENIED; the husband's Motions for Modification dated May 16, 2007 and June 8, 2008 (#288 and 295), and a Revised Motion for Modification dated March 23, 2009 (#324), are HEREBY GRANTED; and the wife's Motion for Contempt dated September 15, 2008 (#311) and the husband's Motion for Contempt dated October 21, 2008 (#314) are HEREBY DENIED, no sufficient credible evidence having been presented to the court to render a decision thereon, and IT IS HEREBY ORDERED THAT:
1. Commencing effective as of April 1, 2009, and monthly thereafter, the husband shall pay to the wife the sum of $2,486.00 as and for periodic alimony, until the death of either party, the remarriage of the wife, the entry into a civil union by the wife, or March 31, 2012, whichever shall sooner occur. Thereafter, unless previously terminated, commencing April 1, 2012, the husband shall pay to the wife the sum of $2,000.00 as and for periodic alimony, until the death of either party, the remarriage of the wife, the entry into a civil union by the wife, or March 31, 2014, whichever shall sooner occur. At his option, the husband may make said payment in two equal installments on the first and fifteenth day of each month. Meaning and intending hereby to continue the original order of the court regarding the non-modifiability of the term of periodic alimony.
2. Commencing effective as of April 1, 2009, and monthly thereafter, the husband shall pay to the wife the sum of $1,114.00 as and for child support, until such time as the child shall reach the age of eighteen years or shall be otherwise emancipated. The foregoing notwithstanding, if the child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or her nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b). At his option, the husband may make said payment in two equal installments on the first and fifteenth day of each month.
3. Commencing March 1, 2010, and monthly thereafter, to the extent that there is an actual arrearage, the husband shall pay to the wife the sum of $250.00 until such time as the arrearage is paid in full. Likewise, in the event that the husband is entitled to a credit, he may apply same to his alimony obligation at the rate of $250.00 a month until the credit is exhausted. At his option, the husband may make said payment or deduction, as the case may be, in two equal installments on the first and fifteenth day of each month.
4. Each party shall be responsible for the payment of their own attorneys fees.
5. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).
6. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the financial orders of the court.
7. The court has specifically modified ¶¶ 3 and 4 of its Order dated March 20, 2002, and unless otherwise modified herein, the remaining provisions of the previous order of the court shall remain in full force and effect.