Opinion
HHDFA155038677
12-08-2016
Chester K. Stewart v. Sheryl Stewart
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Gerard I. Adelman, Judge
This dissolution of marriage action was tried to the court over a four-day period commencing on Monday September 26, 2016 and ending on Thursday November 10, 2016. The plaintiff was self-represented and the defendant was represented by Attorney Tanya Dorman. Both parties testified during the trial and the defendant also subpoenaed as witnesses the paternal grandmother and the plaintiff's former counsel. The paternal grandmother was represented during her testimony by Attorney John Sodipo. While the plaintiff offered no exhibits for the court to consider, the defendant offered many documents as evidence, sixty-four (64) of which were accepted as full exhibits.
The plaintiff was represented by counsel for most of the pendente lite period, but he discharged his counsel in August 2016.
In addition to the dissolution of marriage action, there is also pending before the court a number of pendente lite motions that were reserved for the time of trial. Those motions are: #106 defendant's motion for legal fees; #129 defendant's motion to cite additional party; #131 plaintiff's motion to modify child support; #132 defendant's motion for orders before judgment re college expenses; #133 defendant's motion for contempt re child support; and #134 defendant's motion for contempt re children's expenses.
The parties were married on June 17, 2000 in St. Andrew, Jamaica. They have two children. Dylan, the oldest child, was born in January 1998 will be nineteen (19) on his next birthday. He graduated from Kingswood Oxford School in West Hartford last spring and currently attends the University of New Haven. His younger sister, Haleigh, was born in September 2000 and is currently sixteen (16) years old. Haleigh attends Loomis Chaffee in Windsor. Haleigh, like her older brother did, has scholarship aid to help offset the cost of this private preparatory school. The family contribution to Haleigh's school costs is $2,760 per year.
The plaintiff, age fifty-two (52), was born in Jamaica and migrated to the United States at the age of seventeen (17). He is a United States citizen, but has lived and worked in Jamaica on a full-time basis since approximately 2006. Prior to that, he lived and worked in New York City. According to both parties, they lived together for a only a very short period of time. The plaintiff testified that they have essentially lived apart for the last eleven (11) years and have never actually lived together for more than two (2) years at any point during their sixteen (16) year marriage. While living and working in the United States, the plaintiff earned a degree in nursing and worked as a Registered Nurse (RN) starting in late 2001. Throughout this time, he was also working in the financial services industry. He had earned a Master's Degree in Business Administration and Finance from New York University in 1994. According to the plaintiff's testimony, he never found nursing to be a fulfilling career and by 2005-2006 through some time in 2011 he was a part of an investment program that he later admitted was a " Ponzi" scheme. Currently, the plaintiff is a partner and chief operating officer (CEO) of Green Sun Energy Plus in Jamaica. This business is an alternative energy company that specializes in solar panels, energy saving light bulbs and similar products. This business which was started in 2012 is currently the plaintiff's main source of income.
" The schemes are named after Charles Ponzi, who duped thousands of New England residents into investing in a postage stamp speculation scheme back in the 1920s." (See U.S. Securities and Exchange Commission, Ponzi Schemes, available at http://www.sec.gov/answers/ponzi.htm) (last visited December 6, 2016). " A Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors. Ponzi scheme organizers often solicit new investors by promising to invest funds in opportunities claimed to generate high returns with little or no risk. In many Ponzi schemes, the [fraud focuses] on attracting new money to make promised payments to earlier-stage investors to create the false appearance that investors are profiting from a legitimate business . . .
The defendant is also a native of Jamaica who has lived in the United States. She did not testify as to her age, but she is younger than the plaintiff. The defendant is a Licensed Practical Nurse (LPN). At the time of the trial, the defendant was working two jobs. She currently earns $28 per hour after receiving a recent raise and as a senior member of her staff from her primary employment with the Health Care Reliance, LLC/Ellis. Her stated gross income from that job is $902 per week. Her second job is with Duncaster Incorporated at which she earns a weekly gross income of $299 for a total weekly gross income of $1,201.
The defendant and the children live at 75 Silo Way in Bloomfield, Connecticut. This home was purchased by the plaintiff in 2003 from the plaintiff's mother. She had purchased the home in 2000 and it was, for a short period of time, the marital home. That property is deeded in the plaintiff's name only. He testified that at one point he executed a quitclaim deed transferring the title to the defendant, but does not know if that deed was ever recorded or where it is at this time. The plaintiff's testimony is that the property is currently encumbered by one mortgage with an estimated unpaid principal balance of $120,000. During his cross examination by the defendant, he admitted that he has not paid the mortgage or the real estate taxes on the property for a long time. In his direct examination the plaintiff assumed that the defendant was paying those obligations. In her testimony, the defendant reported that the plaintiff had paid the mortgage into 2007, but by the fall of 2008 she received notice of foreclosure for non-payment of the mortgage for at least a three-month period. It was her testimony that she took on a second job at that time and worked out a payment plan enabling her to keep the house; she testified that the plaintiff had advised her to just walk away from the property and mortgage obligation. In the plaintiff's proposed orders he is willing to transfer this property to the defendant with no further claim to any potential equity.
A photocopy of the first page of such a deed was entered into evidence by the defendant. (Exhibit " R.") That document had been executed on April 12, 2016, but shows no evidence of being recorded on the land records.
There is considerable disagreement as to the parental role of the plaintiff. From his point of view, the plaintiff has been a responsible and caring father to his two children. Despite the fact that he has lived in a different country for most of their lives, he argues that he has always supported them financially and spent time with them both in Connecticut and Jamaica. The defendant views the plaintiff as an absentee parent. She has clearly borne the responsibility of raising two children on her own without any significant participation of the plaintiff. The defendant argues that the plaintiff takes no interest in the children and never calls to discuss parenting issues. She admits to having had considerable help from the paternal grandmother, Dorothy Morgan, who lives nearby.
Morgan has been actively involved in caring for the children and providing considerable financial support. It would appear that the plaintiff relies on Morgan to care for his parental duties including his obligation to support his children. One outstanding issue is whether the financial support provided by Morgan is from her own funds or is a conduit for the plaintiff. The plaintiff did not typically send financial support for the children directly to the defendant. Rather, according to his testimony and that of Morgan, he would send money periodically to his mother who would then provide funds or needed items to the children either directly or through support payments to the defendant.
A pendente lite support order was entered by the court based on an agreement of the parties. (#120.) That agreement was based on the defendant's income and the plaintiff's earning capacity based on his former nursing career. In that calculation he agreed to a gross weekly income of $1,299. An analysis of the evidence and the pendente lite orders shows that from the date of the commencement of the original support order, September 1, 2015 through the end of November 2016, there are fifteen (15) months. The original order of $251 per week translates into a monthly order of $1,087.67 ($251 x 52 weeks divided by 12 months). Accordingly, the required payment for the fifteen (15) months is $16,315.05. There are six (6) months from the date of the filing of the plaintiff's motion to modify the support (June 1, 2016) to the end of November 2016.
One of the pending motions to be decided is the plaintiff's motion to modify the pendente lite support order based on the oldest child reaching his majority. (#131.) Assuming the plaintiff's modification motion was granted retroactively, the new support would likely have been $144 per week based on the court's determination of his weekly income discussed below. That order would require a monthly payment of $624. Subtracting the difference in the modified amount from the original amount ($1,087.67 - 624 = $463.67) for the six months from June 1, 2016 through November 30, 2016 ($463.67 x 6 = $2,782.02) resulting in a total support obligation from September 2015 through November 2016 in the amount of $13,533.03 ($16,315.05 - $2,782.02 = $13,533.03).
Many people mistakenly calculate the monthly equivalent of the weekly order by multiplying the weekly order by four weeks or by 4.3 weeks, but the correct method and the only completely accurate method is to multiply the weekly order by 52 weeks and then divide by 12 months.
The evidence as to what support was actually paid is very sparse. The only amounts that the court can actually verify as being paid total $4,214 with the last payment made for September 2016. Despite the fact that the plaintiff cannot support his testimony that he has met the child support obligation and although it clearly appears that full payment has not been made, the fact that the defendant cannot provide an arrearage amount does not allow a finding by clear and convincing evidence that the plaintiff is in contempt of the support order.
The exhibits offered by the defendant show four payments of $882, $740, $760 and $882 made during June through August 2016. She also testified that she received $950 for September 2016. An agreement adopted as an order by the court (#128) contained a provision that the plaintiff would bring his support obligations current by March 4, 2016. That order was entered on February 24, 2016.
The parties were originally in conflict regarding their willingness to support their children in any post-majority educational efforts. They sent both children to private schools and the defendant has clearly demonstrated a desire to assist the children post-high school as well. She is currently assisting Dylan with his college costs. The plaintiff has refused to participate in such effort and has testified quite clearly that he does not want to provide any financial support to either child post-high school. However, in his written closing arguments he presented a different position. He proposed that the parties, including himself, contribute to the expenses of the children's post-secondary educational costs based on their relative incomes and capped by tuition costs of the University of Connecticut. It would appear then that both parties are asking the court to enter orders for Dylan who is presently in college and to retain jurisdiction for Haleigh who is still in high school.
The essence of this dissolution of marriage matter rests on a determination of the plaintiff's income and assets. It is always a challenge to determine a fair and accurate income for a person who is either self-employed or the owner of a closely held business. In the present matter, that is even more difficult for several factors. First, the plaintiff resides and works in Jamaica. Second, the plaintiff has an extremely impressive set of credentials, but claims that his employment options are rather limited. Third, there have been years of intermingling of funds and possibly assets between the plaintiff and Morgan making it quite difficult to determine exactly who owns what and how much.
The fact that the plaintiff lives and works in a foreign nation has been difficult for the defendant. She alleges a lack of full and complete compliance by the plaintiff with the discovery requests. The plaintiff testified that he believed that he fully complied with all requests for discovery. The defendant subpoenaed the plaintiff's former attorney, but that witness' testimony was restricted due to the attorney/client privilege. The attorney testified as to his notices of compliance sent to opposing counsel, but could not tell from that document or his file as to what specific items were attached to that compliance. There was a deposition held on August 18, 2015 and some seventeen (17) exhibits were provided, a list of which was made part of the transcript. It was the testimony of the attorney that those items were retained after the deposition by the defendant's attorney.
Converting Jamaican dollars to United States currency was another issue. The conversion rate is not static so it is necessary to use different rates at different times. During the trial, the testimony was that the present rate of conversion was $127 Jamaican to $1 U.S. In her closing argument, the defendant asks the court to consult a web site that provides historic conversion rates claiming that in late November 2014 it was as low as $113.56 Jamaican to $1 U.S. As that request was not made during the trial, the court declines to take judicial notice of said web site. Accordingly, the court will use the proven exchange rate of $127 to $1 Jamaican to U.S. and all amounts will be stated in U.S. currency.
" Judicial notice . . . meets the objective of establishing facts to which the offer of evidence would normally be directed . . . Judicial notice relieves a party only of having to offer proof on the matter; it does not constitute conclusive proof of the matter nor is the opposing party prevented from offering evidence disputing the matter established by judicial notice." (Citations omitted; internal quotation marks omitted.) In re Jah'za G., 141 Conn.App. 15, 22, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013). (See also General Statutes § § 4-178, 52-163, 52-164; Code of Evidence § § 2-1, 2-2). At any time during a proceeding, a court at its discretion may, but is not required to, take judicial notice of any fact that is not subject to reasonable dispute. See, Ferraro v. Ferraro, 168 Conn.App. 723, 731-32, 147 A.3d 188 (2016). The court may take judicial notice at the request of either party or sua sponte. However, if a party requests that a judge take judicial notice, the party should give timely notice of the request and both sides should be heard before the court makes a decision. The trial court must give the parties an opportunity to be heard prior to taking such notice. Id. No such notice was provided in this matter.
The plaintiff alleges an average gross weekly income of $462. During his direct testimony on the first day of the trial, he claimed that his weekly gross was $363. In his closing argument the plaintiff offers a different accounting stating his income at $500 weekly. Regardless of the actual amount, it was the plaintiff's testimony that he determines what his weekly salary will be at any specific time. The plaintiff owns the majority interest in his company and he testified that he keeps the salary as low as possible for business reasons. He also indicated that he does take additional payment which he described as bonuses based on the success of a project or the business as a whole. Those bonuses are decided by the two partners and are typically about $6,800 annually. Taking the plaintiff at his testimony, the court could impute to him a gross weekly income of $631 based on his salary draw and bonuses taken.
From this point on, all currency referred to will be in U.S. dollars.
The defendant presented evidence that the plaintiff's true income was considerably higher that even the estimate of the court based on the plaintiff's testimony. She presented as evidence payroll records from Green Sun Energy Plus for the months of March 2014 through March 2015 for a total of thirteen (13) months. (Defendant's exhibit " G.") The plaintiff received a payment for the use of his automobile in the monthly amount of $2698 averaged over the thirteen-month period or an annual sum of $32,376. Those same pay slips indicated that he received gross salary amounts in line with what he claimed on his financial affidavits. That fact would support the credibility of the exhibit, but certainly leaves the court with the very firm impression that the plaintiff's income, considering all sources, has been far in excess of what has been claimed. Combining the $631 weekly gross ($32,812 annually) and the reimbursement for automobile expenses results in an annual gross income of $65,188 or a weekly gross of $1,254.
There are fourteen and not thirteen months as one might expect because there are two pay advise slips for the month of November 2014. The second appears to be a duplicate and was not considered by the court.
The defendant argues that based on the pay stubs entered into evidence, the plaintiff has earned as much as $23,000 gross monthly. Additionally, she argues that he is capable of earning far more money either as an RN in New York or in the financial services industry. Despite the plaintiff's testimony that he has been barred from employment in the financial world due to his involvement in a fraudulent investment scheme, the defendant argues that the plaintiff offered no documentation in support of his claim. She offered his resume from the late 1990s as proof of his past employment in finance. (Defendant's exhibit " H.") While it clearly demonstrates that the plaintiff held some senior positions in several different investment and brokerage companies, information that is twenty years old does not necessarily support his current ability to earn a comparative salary. Regarding his work as a RN, that too is based on work not performed for at least ten years. The plaintiff testified that he has not maintained his New York license and could not be employed as a nurse without relicensing.
" It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards [pursuant to General Statutes § § 46b-82(a) and 46b-86] on the earning capacity of the parties rather than on actual earned income . . . 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." (Citation omitted; internal quotation marks omitted.) Tanzman v. Meurer, 309 Conn. 105, 113-14, 70 A.3d 13 (2013). Based on the evidence before the court, the plaintiff's realistic income is $1,254 per week.
The final issue regarding the plaintiff's income and assets is that of the alleged commingling of income and assets with his mother, Dorothy Morgan. Some of the assets are relatively clear. The plaintiff and Morgan own Vista Mer, Ltd. a corporation that owns a piece of real property known as Lot #27, The Greens, Rose Hall, St. James, Jamaica. Although the plaintiff and Morgan both claim that the property belongs solely to Morgan, the documents and the testimony of all witnesses support the allegation that the plaintiff holds thirty (30) percent of the stock in Vista Mer.
Additionally, the plaintiff was a joint owner with Morgan of a Jamaican investment account with Sterling Asset Management, Ltd. account #***3213. That account was opened in late September 2014, and as of August 7, 2015, had no funds. Clearly, money was in the account and withdrawn from the account during the pendency of this litigation. A review of the exhibits (defendant's exhibits " N" and " BBB") indicate that at least one withdrawal of funds ($1,800 on October 7, 2014--prior to the filing of the litigation) was wired to Morgan, but there is no indication as to which joint owner withdrew the balance of the funds. Morgan testified that both she and the plaintiff deposited money into this account and both withdrew money from it. She testified further that the purpose of the account was to provide money for the benefit of the children, but she could not differentiate as to which funds went to the children of this marriage or to the plaintiff's illegitimate child.
This child, a resident of New York, was born to another woman during the marriage of the parties. The plaintiff testified that he pays voluntary support for the benefit of that child.
Prior to discharging his attorney and filing his own appearance in late August 2016, a significant sum of money was placed in his attorney's client's fund. The purpose of this deposit, according to the testimony of the plaintiff and Morgan, was to be used as a possible lump sum settlement payment to the defendant. That settlement was never achieved for reasons not testified to and not considered by the court. The existence of that sum of money, however, is of relevance to the court as it is some evidence of the plaintiff's ability to raise a substantial sum of money should he need to.
The courts have a strong public policy of encouraging out of court settlements and to that end prohibit disclosure of settlement negotiations so that parties might feel free to engage in open ended and flexible discussions.
Morgan testified that she obtained the money for the plaintiff by borrowing it from the contractor working on the Rose Hall property. No promissory note was offered as evidence nor were any written communications offered to support the claim. Later the testimony changed to indicate that the money was not a loan, but a refund of monies advanced to the construction company for the project that had not yet been expended. Such testimony lacks credibility given the earlier testimony of both the plaintiff and Morgan that work on the project was essentially stalled by an inability to raise the necessary funds for completion. They testified that they could not obtain mortgage financing at the present time and were forced to complete only a very small part of the dwelling. This limited effort was to provide Morgan with a small residence in which to live. The plaintiff testified that the contractor and others involved in the project had liens on the property totaling in excess of $300,000. If " excess" funds were in the hands of the contractor, it is extremely difficult to believe that the contractor would return or even lend a significant sum to Morgan or the plaintiff.
" It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses . . . It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010).
It is undisputed that during the marriage the plaintiff had an affair with another woman and that a child was the issue of that relationship. It is also undisputed that the plaintiff chose to leave the United States to return to Jamaica. He was quite clear that he prefers the lifestyle, the culture and the weather of his birth country to that of Connecticut. It is also undisputed that the plaintiff did not discuss his major life decisions or significant financial decisions with the defendant. Based on these facts it would certainly appear that the plaintiff bears the greater responsibility for the failure of the marital relationship.
The defendant's motion for legal fees (#106) was filed early in the litigation but never decided and reserved for trial. The motion simply asks for $20,000 to be awarded to the defendant to allow her to defend herself in the litigation. " Counsel fees are not to be awarded merely because the obligor has demonstrated an ability to pay. Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds . . . In making its determination regarding attorneys fees the court is directed by General Statutes § 46b-62 to consider the respective financial abilities of the parties . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so." (Citations omitted; internal quotation marks omitted.) Blake v. Blake, 211 Conn. 485, 488-89, 560 A.2d 396 (1989). The proven facts in this case do not provide a basis for an award of legal fees either pendente lite or as part of the judgment.
Defendant's motion to implead Morgan (#129) was denied during the trial.
Plaintiff's motion to modify child support, pendente lite (#131) is based on the fact that the older child reached the age of his majority and graduated from high school effective as of the end of May 2016. That fact is undisputed. The matter did not go forward when first calendared due to the defendant's inability to appear in court as the result of the death of her mother. It is appropriate and fair to enter the modified order retroactive to the date of the filing of the motion on June 1, 2016.
General Statutes § 46b-86(a) provides in pertinent part: " No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50."
Calculating the new support is difficult given the fact that the plaintiff is a citizen and resident of Jamaica. The court was offered no evidence as to what taxes or other mandatory deductions he might be subject to, if any. In the calculation of the original support order, the parties applied the guidelines as calculated by the court's Family Services offices using Family Law Software. To be consistent, and to be fair since that earlier calculation was done by agreement, the court also did the calculations on the same software and determined the appropriate weekly order to be $144 for the remaining minor child. The court's calculation is based on the defendant filing as head of household and claiming two children as dependants. The plaintiff is shown as filing as a single person and claiming himself and his other minor child from a different relationship. The calculation also gave the plaintiff an adjustment for supporting another child even though his testimony was that there was no court order requiring him to do so, but that he was making voluntary payments of some amount on an unreported schedule of payments.
The child support worksheet and the tax report are attached to this Memorandum of Decision and labeled Schedules " A" and " B" and made a part hereof.*
Defendant's motion for order, pendente lite (#132) seeks contribution from the plaintiff for the college expenses of the older child. As with the last motion discussed above, this motion was filed very early in June 2016 but was never heard due to scheduling problems with the parties and was reserved for hearing during the trial by the court. (#135.) As was discussed above, the parties, based on their proposed orders and closing arguments, agree that they will support their children in their post-secondary educational efforts.
The son of the parties started his college career at the University of New Haven this past fall. The defendant presented evidence as to the cost of the college being $37,060 for full-time tuition and mandatory fees and $15,130 for room and board. The total cost for the 2016-2017 academic year is $52,190. The child has been given a total of $23,400 in scholarships, grants and student loans for that academic year leaving a net cost of $28,790.
Under the provisions of General Statutes § 46b-56c, the court may not enter orders for parental contribution that would exceed the cost of a full-time student attending the University of Connecticut. Neither party presented any evidence to the court pertaining to expenses nor was there any testimony as to the other requirements under the statute. Accordingly, the court declines to enter orders at this time. Certainly either party is free to file future motions for an allocation of expenses for not only the older son, but the younger daughter as well.
The statute on educational support orders, General Statutes § 46b-56c provides:
(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age. (b)(1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date. If no educational support order is entered at the time of entry of a decree of dissolution, legal separation or annulment, and the parents have a child who has not attained twenty-three years of age, the court shall inform the parents that no educational support order may be entered thereafter. The court may accept a parent's waiver of the right to file a motion or petition for an educational support order upon a finding that the parent fully understands the consequences of such waiver. (2) On motion or petition of a parent, the court may enter an educational support order at the time of entry of an order for support pendente lite pursuant to section 46b-83. (3) On motion or petition of a parent, the court may enter an educational support order at the time of entering an order of support pursuant to section 46b-61 or 46b-171 or similar section of the general statutes, or at any time thereafter. (4) On motion or petition of a parent, the court may enter an educational support order at the time of entering an order pursuant to any other provision of the general statutes authorizing the court to make an order of support for a child, subject to the provisions of sections 46b-301 to 46b-425, inclusive. (c) The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact. After making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including: (1) The parents' income, assets and other obligations, including obligations to other dependents; (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available; (5) the child's preparation for, aptitude for and commitment to higher education; and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend. (d) At the appropriate time, both parents shall participate in, and agree upon, the decision as to which institution of higher education or private occupational school the child will attend. The court may make an order resolving the matter if the parents fail to reach an agreement. (e) To qualify for payments due under an educational support order, the child must (1) enroll in an accredited institution of higher education or private occupational school, as defined in section 10a-22a, (2) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment, (3) maintain good academic standing in accordance with the rules of the institution or school, and (4) make available all academic records to both parents during the term of the order. The order shall be suspended after any academic period during which the child fails to comply with these conditions. (f) The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents. An educational support order may also include the cost of books and medical insurance for such child. (g) The court may direct that payments under an educational support order be made (1) to a parent to be forwarded to the institution of higher education or private occupational school, (2) directly to the institution or school, or (3) otherwise as the court determines to be appropriate. (h) On motion or petition of a parent, an educational support order may be modified or enforced in the same manner as is provided by law for any support order. (i) This section does not create a right of action by a child for parental support for higher education. (j) An educational support order under this section does not include support for graduate or postgraduate education beyond a bachelor's degree. (k) The provisions of this section shall apply only in cases when the initial order for parental support of the child is entered on or after October 1, 2002.
The defendant's motion for contempt, pendente lite (#133) is based on the plaintiff's alleged failure to pay child support for the month of June. The evidence elicited at trial is that the support paid by the plaintiff for the month of June was $882. Based on the court's order modifying the support order retroactively to June 1, 2016 to $144 per week or $624 per month, the plaintiff's payment was sufficient. Since the motion makes no other claims for failure to pay support, there are no grounds for a contempt finding. However, there is evidence that the payment was not made in a timely manner. The evidence is that the payment tendered was nonnegotiable and that a replacement was not made until August, well after the filing of the instant motion. The evidence also supports the defendant's allegation that payments had historically not been made in a timely manner nor had they always been made in the appropriate amount. Given that history, it was not inappropriate for the defendant to file her motion and the fact that the failure to pay was cured at later date does not relieve the plaintiff of some obligation to the defendant for her efforts and cost to defend her rights on the pending court orders.
" [E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988); see also, Avalonbay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 234, 796 A.2d 1164 (2002) (citing Nelson with approval).
Defendant's motion for contempt, pendente lite (#134) is based on her allegations that the plaintiff failed to obey the court's orders regarding the reimbursement of expenses of the minor children. This motion was also filed in early June 2016 and by order of the court, as discussed above, was reserved until the time of the trial. The evidence supports the allegation that the defendant gave timely notice to the plaintiff of sums required to pay for school tuition at the private schools the two children were attending, in addition to medical bills and other similar expenses incurred in November 2015 ($5,626.53), February 2016 ($5,556.12) and April 2016 ($2,760). The total of said sums is $13,942.65; plaintiff's one-half contribution is $6,971.33. That sum was not paid in a timely manner and was not paid at the time of the motion being filed. Most of the money was eventually paid, according to the defendant, but the failure to pay the tuition items on a timely basis caused her considerable difficulty and concern. The evidence also supports the fact that at the time the motion was filed, the attorney then representing the plaintiff was holding funds in escrow sufficient to satisfy the demand as requested, but the plaintiff did not authorize the release of such funds.
The finding of contempt against a party requires that the court first determine that the order in question is clear and unambiguous. No attempt to argue that the order to share expenses was not clear, or that it was by its nature ambiguous, has been presented to the court. The order is, in fact, based on the written agreement of the parties. (#120.) The second finding that must be made is that the failure to obey the order was a wilful disobedience. As indicated above, the plaintiff had the funds available to make the payments, at least at the time of the filing of the motion, but did not make them. There was no evidence presented to the court that the sums being requested were contested in any way. The court finds that the failure to make the payment was a wilful act on the part of the plaintiff. The court finds that the evidence supporting its findings is both clear and convincing in nature. Brody v. Brody, 315 Conn. 300, 318-19, 105 A.3d 887 (2015) (in indirect civil contempt proceedings such as the one presently before this court, the burden of proof is " clear and convincing evidence").
The court recognizes that some of the deficiencies in the plaintiff's case may well be the result of his representing himself during the trial. The court, in deference to the rulings of our Appellate Court regarding self-represented parties, has extended every latitude possible to him in its rulings on both procedural and substantive issues. " [T]he fact that the defendant is self-represented cannot excuse or cure these obvious inadequacies in the record. " [Although] . . . [i]t is the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party . . . we are also aware that [a]lthough we allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Tonghini v. Tonghini, 152 Conn.App. 231, 240-41, 98 A.3d 93 (2014); In re Nicholas B., 135 Conn.App. 381, 384, 41 A.3d 1054 (2012). Although the plaintiff appeared for all the scheduled trial dates and was both polite and respectful to the court, all counsel and the opposing party, the record clearly reflects that he routinely failed to appear for hearings and has repeatedly failed to obey court orders in a timely and consistent manner. The plaintiff also gave the court the very clear impression that he believed he was doing the best he could to meet his obligations regardless of what the court orders might require. If the plaintiff's efforts did not match the requirements of the court's orders he was unconcerned, as in his opinion, he was doing all he was able to do.
That very clearly communicated opinion and the fact that the plaintiff lives beyond the jurisdiction of the court is troublesome to the court as it considers how to fashion appropriate orders. The defendant recognizes this problem and suggests to the court that it solve the matter by requiring the plaintiff to pay lump sums in advance for child support, school tuition and the other child-related expenses as well as for alimony. Unfortunately, the court has no substantive evidence that the plaintiff has the ability to make such very large payments, or that such amounts are supported by the evidence before the court, and must look elsewhere for solutions.
Having reviewed carefully the testimony of the parties and the other witnesses, including their demeanor while on the stand; having reviewed the items presented to the court as evidence; and having considered the statutory criteria of the appropriate statutes, as well as the case law of our state, the court makes the following findings of fact:
A. The court has jurisdiction over this matter;
B. All statutory stays have expired;
C. The allegations of the complaint have been proven;
D. The marriage has broken down irretrievably and there is no reasonable hope of reconciliation;
E. The plaintiff bears the majority of the responsibility for said marital breakdown;
F. There are two children issue of the marriage, one of whom is still a minor and the other who is under the age of 23, to wit: Dylan, born in January 1998; and Haleigh, born in September 2000;
G. Neither party nor the children have been the recipient of any state or municipal assistance during the marriage;
H. Neither party has completed the required Parenting Education Program, but given the ages of the children involved it would be appropriate for the court to waive that requirement;
I. Despite the fact that the parties reside in different countries, the court finds it to be in the minor child's best interests for the parties to share joint legal custody, but that given the separation of the parties it would serve the child best interest for the defendant to have the authority to make all major decisions for said child after reasonable consultation with the plaintiff;
J. The reasonable weekly income of the plaintiff is $1,254;
K. The defendant's weekly income is $1,201 considering both her jobs, but her income if limited to 45 hours for child support purposes is $1,152;
L. The presumptive child support order is $144 per week payable by the plaintiff to the defendant and a contribution to unreimbursed medical/dental bills of 39 percent;
The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b-215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b-215c. See Regs., Conn. State Agencies § 46b-215a-1 et seq. The use of the guideline worksheet is based on calculations using the net incomes of the parties despite the fact that the court has cited gross income amounts for convenience.
M. No request has been made to deviate from the presumptive child support amount;
N. The parties, had they remained an intact family, would have supported their children to the best of their ability in their postsecondary educational efforts;
O. The plaintiff has a sixty percent (60%) ownership in Green Sun Energy Plus located in Jamaica and a thirty percent (30%) interest in Vista Mer, Ltd., a corporation holding real estate in Jamaica, both of which were acquired during the marriage;
P. The plaintiff is the titled owner of the marital home located at 75 Silo Way, Bloomfield, Connecticut and the mortgage is in his name;
Q. The plaintiff is the titled owner of the 1996 Toyota 4Runner motor vehicle used exclusively by the defendant; and
R. The plaintiff has failed, refused and neglected to pay legal fees to the defendant in the amount of $1,400 as ordered by the court (Albis, J.) on August 23, 2016 ($700 ordered #135) and on September 7, 2016 ($700 ordered #136) after notice of said orders having been provided to the plaintiff in a timely fashion.
In consideration of the court's findings of fact as set forth above, the court hereby ORDERS:
I. The marriage of the parties is dissolved based on an irretrievable breakdown. The parties are declared to be single and unmarried.
II. The parties shall share joint legal custody of the minor child, Haleigh, and her principal place of residence shall be with defendant in the State of Connecticut:
A. After reasonable and good faith discussions, the defendant is to have the final decision making authority as to all issues concerning the health, education, religious upbringing and general welfare of the minor child;
B. Such reasonable and good faith discussions shall not exceed forty-eight (48) hours;
C. This provision shall not apply to a genuine emergency situation.
III. The plaintiff shall have reasonable and liberal parental access to said minor child, the details of which shall be agreed to by the parties:
A. Said parental access may be exercised in both Connecticut and Jamaica as agreed to by the parties;
B. The parties shall cooperate to assure that the minor child has an appropriate passport or other such documentation to allow her to travel to Jamaica and other locations outside of the United States;
C. Agreement for access is not to be unreasonably withheld.
IV. The plaintiff shall pay as child support the sum of $144 per week and 39% of any unreimbursed and/or uncovered medical and/or dental expense of the minor child:
A. Said payment may be made on a monthly basis;
B. The monthly payment is $624;
C. Child support must be received by the defendant no later than the twentieth day (20th) of each month commencing with January 2017;
D. The plaintiff shall provide proof of payment of at least $624 for the month of December 2016 to the court no later than noon on Friday January 20, 2017;
E. Failure of the plaintiff to provide proof of payment by the stated deadline shall result in an arrearage of $624 for the month of December 2016 which must be paid in full no later than January 31, 2017.
V. The defendant shall continue to provide medical and dental insurance for the benefit of the minor child as is available to her through employment at reasonable cost:
A. Reasonable cost shall be defined as not to exceed seven and one-half percent (7.5%) of her net weekly income;
B. If said insurance is not available, the parties shall cooperate in enrolling the child for Husky Insurance coverage or any successor thereto;
C. Any claim for reimbursement for medical/dental expenses shall be made no less than once every three months and shall include sufficient documentation so as to allow the plaintiff to determine the original cost, any insurance coverage, the amount paid out of pocket by the plaintiff, and the amount being sought for reimbursement:
1. If the request appears appropriate, reimbursement shall be made in thirty (30) days unless the amount in question exceeds $200 in which case the period shall be sixty (60) days;
2. If the requested documentation, as required above, is not sufficient, the plaintiff shall so notify the defendant within ten (10) days of receipt, and the defendant shall cure the deficiency as quickly as possible;
3. The plaintiff shall have a thirty or sixty-day time period from the receipt of the revised and now sufficient documentation to reimburse the defendant.
VI. The court shall retain jurisdiction as to issues related to post-secondary educational expenses pursuant to General Statutes § 46b-56c.
VII. The parties shall share equally the costs of Haleigh's secondary education net of any financial aid received, as well as all mutually agreed-upon extra curricular and enrichment activities:
A. Educational costs that must be paid prior to the start of a school year or semester and shall be made promptly once notice of payment due is received;
B. The parties shall follow the same reimbursement procedures for other costs as set forth above in paragraph C, 1-3 above;
C. Agreement is not to be unreasonably withheld;
D. The activities in which the minor child is engaged, as of the date of the judgment, shall be presumed to be acceptable to both parties.
VIII. The plaintiff shall pay to the defendant periodic alimony in the amount of One Dollar ($1.00) per year:
A. Said alimony shall terminate upon the death of either party or December 31, 2026;
B. Said alimony shall be modifiable by the defendant in the event that the plaintiff fails to obey any of the orders as set forth in this judgment and shall be modified only to the extent needed to protect the interest awarded to the defendant in any such order that shall not have been obeyed;
C. Any alimony paid shall not be taxable income to the defendant and shall not reduce the gross taxable income of the plaintiff;
D. Said alimony is deemed by the court to be in the nature of spousal support and shall not be dischargeable in any future bankruptcy proceeding or similar type of litigation brought by the plaintiff.
IX. The plaintiff shall secure and maintain life insurance on his life with a death benefit of $250,000 naming the defendant as an irrevocable beneficiary:
A. Said insurance shall be maintained until December 31, 2026;
B. Said insurance shall not be encumbered in any fashion by the plaintiff;
C. The plaintiff is to provide proof of such coverage to the defendant on or before January 31, 2017 and every January 31st thereafter;
D. If the plaintiff is unable to obtain said insurance for an annual premium of $750 or less, he shall obtain as much insurance as is possible for the maximum annual premium of $750;
E. In the event of the failure of the plaintiff to provide such insurance, the defendant shall have a claim against his estate in the amount of $250,000.
X. The plaintiff shall execute and deliver to the defendant an executed quit claim deed transferring all of his right, title and interest in the real property located at 75 Silo Way, Bloomfield, CT within thirty (30) days of the date of this judgment:
A. The plaintiff shall also execute any and all other documents necessary to effectuate this provision;
B. Said documents shall be prepared for execution by the defendant's attorney and the cost of the preparation of any such documents, not to exceed $200, shall be the sole responsibility of the plaintiff;
C. The cost of recording such documents on the Bloomfield Land Records shall be the sole responsibility of the defendant;
D. The plaintiff shall also execute and deliver to the defendant any document required by the holder of the mortgage to allow the defendant to deal with said holder on all issues regarding the payment, modification or other related issues of said mortgage and shall cooperate in any and all ways so as to carry out the intent of this provision;
E. The defendant shall be solely liable for any and all expenses stemming from the ownership and possession of said real property and shall hold harmless the plaintiff and indemnify him from any and all liabilities resulting therefrom;
F. Until the transfer of ownership is completed, the defendant shall have exclusive possession of said real property;
G. The defendant shall own and possess all household furnishings and possessions located in said property and in her possession free and clear of any claim from the plaintiff.
XI. The plaintiff shall execute and deliver to the defendant all such documents as may be necessary to transfer the title and registration of the 1996 Toyota 4Runner motor vehicle:
A. Said documents shall be prepared for execution by the defendant's attorney and the cost of the preparation of any such documents, not to exceed $100, shall be the sole responsibility of the plaintiff;
B. The cost of filing such documents with the Department of Motor Vehicles shall be the sole responsibility of the defendant;
C. The defendant shall be solely liable for any and all expenses stemming from the ownership and operation of said motor vehicle and shall hold harmless the plaintiff and indemnify him from any and all liabilities resulting therefrom;
D. Until the transfer of ownership is completed, the defendant shall have exclusive possession of said motor vehicle.
XII. The plaintiff shall transfer to the defendant twenty-five (25) of his thirty (30) shares in Vista Mer, Ltd.:
A. Said transfer shall be made no less than thirty (30) days after the date of this judgment;
B. If the parties agree, the plaintiff may pay to the defendant a sum of money in lieu of the transfer of shares. Said sum may be any amount as agreed to by the parties as long as it is not less than fifty thousand dollars ($50,000).
XIII. The plaintiff shall transfer to the defendant twenty (20) shares of his sixty (60) shares in Green Sun Energy Plus:
A. Said transfer shall be made no less than thirty (30) days after the date of this judgment;
B. If the parties agree, the plaintiff may pay to the defendant a sum of money in lieu of the transfer of shares. Said sum may be any amount as agreed to by the parties as long as it is not less than fifty thousand dollars ($50,000).
XIV. Defendant's motion for legal fees, pendente lite (#106) is denied.
XV. Defendant's motion to implead Dorothy Morgan (#129) was previously denied by the court (#129.01).
XVI. Plaintiff's motion to modify child support, pendente lite (#131) is granted as follows:
A. The child support shall be modified downward to $144 per week or $624 per month; plaintiff shall also be responsible for 39% of medical and/or dental expenses;
B. Said modification is retroactive to June 1, 2016.
XVII. Defendant's motion for order re college expenses, pendente lite (#132) is denied without prejudice.
XVIII. Defendant's motion for contempt, pendente lite (#133) is denied:
A. Despite the denial of the contempt, the plaintiff is ordered to pay to the defendant the sum of $700 in legal fees and costs;
B. Said payment shall be made no later than January 31, 2017.
XIX. Defendant's motion for contempt, pendente lite (#134) is granted:
A. The plaintiff shall pay to the defendant $6,971.33 representing his one-half reimbursement for child-related expenses;
B. The plaintiff shall pay to the defendant the sum of $700 as legal fees and costs for the filing and prosecution of said motion;
C. Said payment shall be made no later than February 28, 2017.
XX. The plaintiff shall pay to the defendant the sum of $1,400 in legal fees, previously ordered by the court and remaining unpaid, no later than March 31, 2017.
XXI. The failure to make any of the required payments within the time limitations as set forth in sections IV, XVII, XVIII or XIX shall accrue statutory interest pursuant to General Statutes § 37-3a as of the date of this judgment:
*Editor's Note: The referenced Child Support Worksheet Schedule A; and Tax Report Schedule B, Footnote #12, have not been processed. General Statutes § 37-3a provides in pertinent part: " (a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located."
A. Said interest accrual shall be in addition to other remedies that may be available to the defendant;
B. The accrual of such interest shall not be interpreted as to prevent the defendant from pursuing other remedies to which she might be entitled under the law.
XXII. Each party shall retain free and clear of any claim by the other all personal property not otherwise distributed in this judgment.
XXIII. Each party shall be solely liable for their own debts and liabilities as represented on their respective financial affidavits filed with the court and shall hold harmless and indemnify the other from any and all liability therefrom; and
XXIV. Each party shall be solely liable for their own legal fees and costs associated with this matter other than the amount of fees that have been ordered above.
SO ORDERED.