Opinion
No. FA 00-0446060S
June 9, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR DECREE DISSOLVING MARRIAGE (No. 114) AND PLAINTIFF'S MOTION FOR CONTEMPT (No. 115)
The defendant has filed a motion to convert the legal separation of the parties ordered by the Family Court in Rutland, Vermont, on April 4, 2000, into a judgment of dissolution. The plaintiff has moved that the defendant be held in contempt for not paying alimony ordered by the Vermont court. The parties appeared with counsel for hearing on these matters on two days in March and April of this year, at which time both parties testified and offered certain exhibits into evidence. The plaintiff also called her friend and work supervisor, Barbara Mucha, to testify. After the close of evidence both parties filed briefs and appeared for closing argument on May 8, 2008.
The parties were married on April 25, 1981, and lived together until the husband left the parties' home in Vermont, in November 1997. They first lived in Louisiana, where the defendant worked on an oil rig until a lockout, then moved to Massachusetts in the late 1980s to be near extended family. The defendant was the primary breadwinner for most of the marriage; but, until the parties moved to Vermont in 1996, the plaintiff also worked, sometimes part-time and sometimes full-time. The defendant testified that the marriage went well until the plaintiff decided to become a Catholic in the early 1990s. Yet, although he testified before this court that he disapproved of what he regarded as her cult-like devotion, he also acknowledged that he never told her but instead continually supported and acquiesced in her wishes. From the plaintiff's perspective, then, the defendant was a willing partner in the decisions she made as part of her newfound faith. Thus, when the defendant left the plaintiff because, as he testified here, "he couldn't take it any longer," the plaintiff viewed him as abandoning her without justification. She had a nervous breakdown afterwards, and even lived in a homeless shelter for a while. However the defendant felt about the plaintiff's faith or conduct, having never told her of her opinion he also never gave her an opportunity to consider whether to accommodate his views. On the other hand, the defendant also exhibited a generous and supportive spirit during the marriage, not quarreling with his wife's insistence upon sexual abstinence after her religious awakening until they had a Catholic wedding, adopting her two children from a prior marriage when their father did not provide any financial support, and agreeing to move to Vermont to start a foundation there for unwed mothers when she wanted to.
Shortly after leaving the plaintiff, the plaintiff filed a divorce action in Vermont but later withdrew that action. The plaintiff also filed an action, however, and, after a hearing on February 23, 2000, at which only she appeared and testified, the Vermont Family Court granted her petition for legal separation on March 8, 2000. The defendant admitted, in the hearing before this court, that he had notice of the plaintiff's action in Vermont and the 2000 hearing, which he said that he chose not to attend because he believed that the Vermont court lacked jurisdiction to hear his wife's case because she no longer resided in that state. His brief concedes, however, that the plaintiff had sufficient contacts with the State of Vermont for a court of that state to order the parties' legal separation. When doing so, the Vermont court had both subject matter over the marriage and personal jurisdiction over the parties. The defendant having resided in Connecticut for many years, this court now has jurisdiction to dissolve the marriage. There are no minor children who are issue of the marriage.
In granting the legal separation, the Vermont court ordered the defendant to pay the plaintiff alimony of $1,500 per month and to keep her on his health insurance policy "until such time as she is eligible for health insurance through her work or school." Both parties seek different orders in this proceeding. The plaintiff requests alimony in the amount of $400 per week, that the defendant continue providing medical insurance for her, and that he pay her counsel fees in the amount of $3,500. The defendant asks for a termination of alimony and his obligation to provide health insurance for the plaintiff. The parties' briefs and proposed orders make it evident that both parties acknowledge the mandate of the Appellate Court in Mignosa v. Mignosa, 25 Conn.App. 210, 215-16, 594 A.2d 15 (1991):
The court also entered certain orders dividing the parties' property and assigning responsibility for their debts, finding defendant in contempt for not paying spousal support ordered earlier in that proceeding, ordering him to pay those arrears, and requiring him to pay plaintiff's counsel fees.
Neither party seeks any orders for equitable division of property or debt, the plaintiff having, during closing argument, abandoned such a request contained in her claims for relief.
The plaintiff's brief states that "The law regarding the conversion of a legal separation to a dissolution is well settled. The trial court must find that the orders were "fair and reasonable at the time of the dissolution." To arrive at this determination, the court must perform a de novo review of all the relevant facts and circumstances of the parties [sic] relationship." (Citation omitted.) The defendant's brief similarly states that "This court is being asked to convert a legal separation into a decree dissolving the marriage of the parties. The Court is also being asked to determine whether, under the circumstances that now exist, payment of alimony to the Plaintiff is appropriate . . . At the time of dissolution, a Superior Court Judge may order alimony only if he or she finds that it is appropriate to do so under certain specifically enumerated criteria. The parties are entitled to an evidentiary hearing as to whether these standards have been met."
The effect of the separation agreement [orders] . . . is governed by General Statutes 46b-66, which requires that the court "inquire into the financial resources and actual needs of the spouses . . ." The fact that the agreement was presumably found "fair and equitable" at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of dissolution and to afford an opportunity for a hearing on the issues involved.
In Crabtree v. Crabtree, Superior Court, judicial district of New Haven, docket no. FA 94-0363150S (August 28, 2007), this court followed Mignosa as controlling authority. Since then, however, Judge Swienton has written a cogent analysis in Gilbert v. Gilbert, Superior Court, judicial district of New Haven, docket no. FA 04-0485657 (May 13, 2008), rejecting Mignola as binding and holding that, under Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984), and General Statutes § 46b-65, "when there is no dispute that the parties had not resumed marital relations[,] the statute requires the court to give effect to the parties' status and convert a de facto dissolution into a dejure dissolution without changing the prior orders. (Quotations omitted; citations omitted.) Since both parties here have asked the court to follow Mignosa, this case does not present an occasion for this court to reconsider its prior views. The court will instead decide the case on the legal theory tried by the parties. See Swerdloff v. AEG Design/Build, Inc., 209 Conn. 185, 188, 55 A.2d 306 (1988) (stating that "It is well established that the trial court is entitled to decide a case on the theory on which it was tried.")
The parties have lived apart since they separated in November 1997. The plaintiff is 57 years old and in poor health. At the time of the hearing on her legal separation in February 2000, she held two part-time jobs as a certified nurse's aid earning $9 per hour and working an average of 36 hours of week; she also told the Vermont Family Court Judge that she "work[ed] off" $200 a month of her rent by "doing heavy and light housework" for the person she lived with. In total, she thus had earned and in-kind gross weekly income at that time of $371 gross per week. She testified at that hearing that she wanted to go back to school for a one-year LPN program and then for a two-year RN program and would need $1,500 per month alimony from the defendant while she attended those programs and afterward. The Vermont court for alimony of $1,500 per month did not have any limitation on the duration of that order.
Q. Are what is the amount of support you're asking the Court for?
A. $1,500 a month so I can go back to school.
Defendant's exhibit A, transcript of proceedings, 2/23/2000, at p. 34.
Q. Do you anticipate that you would require continued support beyond the time that you got your degree to resume the lifestyle that you had during your marriage?
A. Yes.
Id., at p. 36.
After the legal separation, the defendant initially did not pay the alimony ordered. The plaintiff then engaged legal counsel in this state, where the defendant had moved a few months after separating from the plaintiff to register the Vermont decree as a foreign judgment on December 8, 2000, and then to move for contempt for nonpayment of alimony and certain debts on January 17, 2001. On March 15, 2001, the parties entered into a written agreement, adopted as an order of the court, Domnarski, J., acknowledging that defendant owed plaintiff an arrearage of "$20,727.37 subject to adjustment" and providing that he would pay (i) "the current of $346.16 per week and $69.23 on arrears," (ii) 25% of "commissions received over and above his salary" toward the arrearage, and (iii) the legal fees he owed to plaintiff's Vermont counsel in the legal separation. After a second motion for contempt filed by plaintiff on February 7, 2002, the parties entered into another written agreement, adopted by the court, Kenefick J., on February 21, 2002, which provided that he then had an arrearage of $22,342.84, ordered a weekly wage garnishment for $346.16 for current alimony and $69.23 for the arrearage, and ordered defendant to make monthly payments to plaintiff's Vermont attorney.
The defendant paid that arrearage, but he has accumulated a new one, since, as of the last day of evidence, he has not paid any alimony to the plaintiff since December 2007. He owes her back alimony of $9,000, plus any additional amounts not paid since the close of evidence, on the Vermont order. Since he offered no lawful excuse for his failure to comply with the Vermont alimony order, his violation of that order is accordingly found to be wilful, and the motion for contempt no. 115 is accordingly GRANTED.
The plaintiff never completed the LPN or started the RN programs that she told the Vermont court she wanted to take. One of the principal reasons for her not having done so was the defendant's failure to pay the alimony ordered by the Vermont court. Instead, she had to support herself, working full-time as a certified nurse's aid for many years until numerous medical problems required her to find less stressful work and to reduce her hours to part-time. She introduced letters into evidence from her doctor written on July 20, 2007, that she had "had to change jobs due to the stressful hours and working conditions that exacerbated her medical condition" and on August 1, 2007, that "her reduced hours have been necessitated by her . . . health conditions." A little more than a year ago, she quit her full-time job as a nurse's aid earning $10 per hour and started working 32 hours a week at $15 an hour as director of Bethlehem House, a pregnancy assistance center located in her own home in which she counsels, in her words, "abandoned and pregnant" young women. She claimed at the hearing that her medical conditions prevent her from working more than 24 hours a week, but it was clear from the evidence that she regularly works more than that. One of the reasons for the number of hours she works each week is that the nonprofit corporation for which she works sometimes lacks funding to pay her for more than 24 hours a week. Her financial affidavit filed with this court listed weekly income of $360 gross and $275.59 net, but in light of all the evidence the court finds that probably can and does work more than 24 hours per week on a regular basis. She earned an average of $378.29 per week gross in the last nine months of 2007, and that number is a fair representation of how much she is probably earning now on an average basis. Using that figure the court finds she has present weekly income of $378 gross and $313 net.
As it is unclear whether she had begun her employment at the Bethlehem House by January 1, 2007, the court cannot determine whether her wages for the first quarter of 2007 represent work there for the entire quarter. The court thus concluded that her wages for the last nine months of the year are the most reliable indicator of her average weekly income in 2007 from Bethlehem House.
The defendant is six years younger than the plaintiff and has always earned considerably more than she, except for a couple of years in Massachusetts when he tried to start a home construction business that failed and for a few months of unemployment after they moved to Vermont. After moving to Massachusetts in the late 1980s, he mostly worked as a printing pressman earning $40,000 to $45,000 annually. Upon learning, after their move to Vermont, that the foundation for unwed mothers was not as fully developed as they had anticipated or able to pay them yet, the parties lived on the defendant's 401K for a few months until he obtained a job demonstrating printing press equipment that paid $45,000 a year but required him to travel frequently. After leaving the plaintiff in November 1997, he moved to Connecticut and began working for Fox Integrity Graphics in Windsor. A financial affidavit that he signed on August 27, 1999, for the Vermont Family Court and was introduced into evidence at the legal separation hearing a few months later showed that he had monthly gross income of $6,245.20 from that employment; it listed monthly tax obligations of $2,017.71 and monthly health insurance expenses of $111.76, for total net income of $4,115,73 per month and $957.15 per week. He now works as a plant manager in Bolton, Connecticut, for Simoniz USA, where he earns a salary of $1,595 gross per week and had bonus income in 2007 of $4,979.16, which together would represent average weekly income of $1,691 gross and $1,197 net. Although he claimed that his bonus compensation has declined, the court is disinclined to accept that claim without evidence other than his own testimony and thus finds that the 2007 averages probably and fairly reflect his present gross and net weekly income.
The defendant has been able, since separating from the plaintiff, to purchase a home three years ago, acquire equity there of more than $40,000 and save $31,000 in a 401K plan. One month before he filed the pending motion on May 25, 2007, he also had $47,498.51 in checking and savings accounts deposited in Bank of America; a bank statement filed two days after he filed the motion showed a combined total balance of $24,164.71, a reduction of more than $23,000 in one month. He testified before this court that most of those funds went to help a "stepson" who had been in a motor vehicle accident. Despite paying the plaintiff alimony of $1,500 per month, it is thus obvious, as the defendant himself admitted, that he has been able to meet all of his financial needs, save, and live comfortably, even while also supporting the woman with whom he lives and, in certain years, her two children.
The defendant claims that alimony should be ended now. He argues that the original Vermont order was intended to be rehabilitative, — i.e., to help the plaintiff while she became self-sufficient by going to nursing school — and points to several portions of the transcript of the Vermont proceedings to support this assertion. He overlooks the facts, however, that the Vermont court put no term limit on the order and that the plaintiff told the Vermont court she would need alimony even after becoming, as she then planned, an LPN and RN. The defendant's own conduct thwarted the plaintiff's intention or ability to go to school to obtain those nursing credentials and earn the greater income they would have facilitated. For several years, he did not pay the alimony ordered by the Vermont court that would have helped the plaintiff to go back to school. Instead, she had to work to support herself. By the time she brought contempt motions in Connecticut and ultimately obtained a wage garnishment here, it was no longer feasible for her to go to school. Today, her income not having risen to the level to which a registered nurse might aspire, her financial affidavit shows substantial debt in the amount of $18,000.
After considering all of the proven facts in light of the findings and orders of the Vermont court and Connecticut law regarding awards of alimony, as set forth in General Statutes § 46b-82, this court concludes that the Vermont order for the defendant to pay periodic cash alimony in the amount of $1,500 per month and to provide health insurance for her is almost, but not quite, still fair and equitable based on present facts and circumstances. Instead, the court orders alimony in the amount of $375 per week, an amount that will enable her to meet her weekly living expenses, for the period of ten years requested by plaintiff in her claims for relief. Upon dissolution of the parties' marriage, the plaintiff will probably no longer be eligible to be covered by the defendant's health insurance, as required by the Vermont order, (COBRA) of 1986. No evidence was introduced as to the cost of medical coverage under COBRA. Her employer does not provide medical insurance but, as a resident of Massachusetts, she can purchase health insurance through that state's universal health care plan for $340 per month, with coverage comparable to what she now has from the defendant's health care plan for $422.81 per month. Periodic alimony of $375 per week would enable her to meet the weekly living expenses listed on her financial affidavit; but, in view of the tax consequences of the order that the defendant pay for her medical insurance; see Isaacson v. Commissioner, 58 TC 659 (Tax Court 1972); Lebeau v. Commissioner, Tax Court Memo. 1980-201, 1980 WL 4047 (Tax Court 1980), both cited in Mertens Law of Federal Income Taxation, § 31A:19; the court finds that her request for alimony of $400 per week plus the cost of her medical insurance, for the period of ten years requested by plaintiff in her claims for relief, to be fair and equitable now based on the present facts and circumstances. The court therefore orders the defendant to pay periodic alimony of $400 per week plus additional alimony in the amount of $422.81 per month for the sole purpose of enabling the plaintiff to purchase health insurance comparable to that which she now has through the defendant under the Massachusetts universal health care initiative. Until such time as is reasonable and necessary for the plaintiff to apply for and be covered by such insurance, the defendant shall pay the full cost of COBRA medical insurance comparable to her present insurance.
General Statutes § 46b-82(a) provides, in pertinent part, as follows: "[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
The plaintiff has also asked that the defendant contribute $3,500 toward the cost of her counsel fees. Section 46b-62 of the General Statutes governs the award of attorneys fees in dissolution actions and provides that "the court may order either spouse . . . to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in [General Statutes §] 46b-82 . . ." The court must take care that its determination of this question does not substantially undermine its other financial orders:
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Under the recent decision of Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007), a court also has "discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct." Moreover, a court may award counsel fees under General Statutes § 46b-87 against a party found in contempt.
Section 46b-87 of the General Statutes provides, in pertinent part, as follows.: "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, . . ."
An award of counsel fees to the plaintiff would be appropriate here in view of all the facts and circumstances and in consideration of the applicable law set forth above. Not awarding counsel fees would undermine the other financial orders here. The plaintiff also incurred time in successfully pursuing her motion for contempt. Although her counsel stated during the hearing that she seeks an award here of $3,500, the plaintiff did not submit an affidavit from her attorney or provide evidence that would allow the court to determine whether an award in that amount would be reasonable. On the facts and circumstances here, a counsel fee award up to that amount would be appropriate. The court will retain jurisdiction to enter a specific order regarding the amount of counsel fees to award and directs plaintiff's counsel to submit an affidavit as to his fees within three weeks of the date of this decision. If defendant submits a written objection or seeks an evidentiary hearing, the court will thereafter schedule one; if not, the court will decide the reasonableness of plaintiff's counsel fee request on the record. Smith v. Snyder, 267 Conn. 456, 480-81, 839 A.2d 589 (2004); Arcano v. Board of Education of City of Stamford, 81 Conn.App. 761, 770, 841 A.2d 742 (2004).
As our Supreme Court has noted, "Connecticut courts traditionally examine the factors enumerated in rule 1.5(a) of the Rules of Professional Conduct in calculating a reasonable attorneys fee award." Simms v. Chaisson, 277 Conn. 319, 332 (2006). Rule 1.5(a) provides as follows: "A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent."
CT Page 9931
ORDERS
After considering the statutes and law regarding dissolution of a marriage after a legal separation and the statutory criteria set forth in General Statutes §§ 46b-62, 46b-82 and 46b-87 regarding awards of alimony and award of counsel fees, together with applicable case law and the evidence presented here, the court hereby enters the following orders:A. Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
B. Alimony
1. The defendant shall pay the plaintiff weekly alimony in the amount of $400.
2. The defendant shall pay additional alimony sufficient for plaintiff to obtain health insurance comparable to that coveting her prior to this order, as set forth below:
a. The defendant shall pay plaintiff an additional $422.81 per month for the sole purpose of enabling the plaintiff to purchase health insurance comparable to that which she now has through the defendant under the Massachusetts universal health care initiative.
b. Until such time as is reasonable and necessary for the plaintiff to apply for and be covered by such insurance, the defendant shall pay any necessary additional costs necessary for plaintiff to be covered under COBRA for a level of coverage comparable to what she now has through the defendant.
3. The defendant shall pay the alimony arrearage of $9,000 owed to the plaintiff, plus any additional arrearages owed for alimony not paid since the time of trial, in six consecutive equal monthly installments beginning the month immediately following issuance of this decision.
4. Alimony will terminate in ten years, unless extended for an additional period by court order, or upon the death of either party or plaintiff's remarriage or civil union. The defendant's obligation to pay for her health insurance may be terminated or modified, as the circumstances may warrant, when and if comparable health insurance becomes available to the plaintiff at a reasonable cost through her place of employment. The plaintiff shall immediately notify the defendant of any change in the availability or cost of health insurance through her employer, and shall sign any written release necessary for defendant to obtain such information directly from her employer. Alimony may be modified or terminated, as the circumstances may warrant, should the plaintiff cohabit with another as set forth in General Statutes § 46b-86(b).
Section 46b-86(b) of the General Statutes provides as follows: "In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party."
C. Counsel Fees
1. The court retains jurisdiction to enter an award of counsel fees to plaintiff in an amount not to exceed $3,500.
2. Plaintiff shall submit an affidavit of counsel fees within three weeks. If defendant submits an objection or requests a hearing within three weeks thereafter, the clerk shall schedule a hearing; otherwise, the court will decide the matter on the papers.