Opinion
No. NNI FA06 4005722
May 8, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT (#127.20) AND MOTION TO MODIFY (#127.30)
This memorandum of decision addresses the issues raised through Motion to Modify Pendente Lite (#127.20) and Motion for Contempt, Pendente Lite (#127.30) filed by the defendant-husband on February 8, 2007. Through his motion to modify, the defendant-husband seeks reduction of a previous order obligating him to pay alimony to the plaintiff-wife pendente lite; though his motion for contempt, the defendant-husband seeks sanctions for the plaintiff-wife's alleged failure to comply with a previous order obligating her to pay him a sum certain. On April 10, 2007, after hearing, the court entered interim orders, pendente lite. Upon consideration, the court has determined that evidence does not support granting the defendant-husband, in full, the relief he has requested. The court finds the motion for contempt (#127.30) in favor of the plaintiff-wife; finds the motion to modify (#127.20) in favor of the defendant-husband; and issues orders in accordance with these findings.
I. PROCEDURAL HISTORY
A review of the litigation's complex pendente lite history will place the present motions, and the court's rulings, in context. The plaintiff-wife brought her action for dissolution of marriage to the court on March 31, 2006. Among other things, the complaint alleges that the parties had intermarried on October 18, 1986, and that there were no minor children at issue. On April 24, 2006 The defendant-husband filed his Answer and Cross-Complaint (#101) alleging, among other things, that their son Keith DeVit, Jr. (Keith, Jr.), born January 14, 1988, was still a high school student.
The parties agree that Keith, Jr. has now reached his majority. (Testimony of LD, KD.)
Subsequent pleadings reflect the waxing and waning disharmony between the parties in this case which has not yet been assigned for trial. On August 23, 2006, the plaintiff-wife filed her Motion for Contribution toward Household Expenses, Pendente Lite (#105) and her Motion for Alimony, Pendente Lite (#106). On August 31, 2006, the plaintiff-wife filed a Motion to Compel Production of Financial Affidavit (#107), asserting the defendant-husband's failure to adhere to a case management agreement; on September 8, 2006, the plaintiff-wife filed a Motion for Order of Compliance (#108), claiming that the defendant-husband had failed to respond to her discovery requests. On September 15, 2006, the plaintiff-wife filed a Motion to Extend Case Management Date, Pendente Lite (#109) asserting that her expert was unable to appraise marital property due to the defendant-husband's failure to effectively cooperate with the discovery process. On September 29, 2006, the defendant-husband filed a Motion for Order, Pendente Lite (#111) seeking permission for his appraiser to enter upon and examine marital property. On that date, the defendant-husband also filed a Motion for Order, Pendente Lite (#112) seeking the plaintiff-wife's partial payment for health insurance, alleging that the plaintiff-wife had "led" him to misunderstand the actual premiums attributable to his own coverage. In addition, on September 29, 2006, the defendant-husband filed a Motion to Compel Compliance and for Sanctions Pursuant to Practice Book § 13-14 (#113), claiming that the plaintiff-wife had failed to timely cooperate with the discovery process.
On October 23, 2006, the parties filed a written agreement (#118) with the court resolving a number of the motions immediately referenced above. The court (Taylor, J.) entered orders in accordance with the agreement, requiring: the defendant-husband to pay medical insurance premiums for the family in the amount of $576.00 per month; the defendant-husband to pay for insurance on the parties' automobiles; the defendant-husband to pay taxes for the real property located at 3 North Plains Road in Wallingford; the plaintiff-wife to collect rents, pay taxes and make mortgage payments for the property located at 89 Chapel Street in Wallingford; and the defendant-husband to pay the plaintiff-wife $175.00 per week as alimony. Tr. 10/23/06. These orders did not, however, belay the uneven nature of the parties' pendente lite relationship.
On December 20, 2006, the plaintiff-wife filed a Motion to Modify Pendente Lite Order (#120), addressing the health insurance provisions of the October 23, 2006 agreement and orders, seeking conformity with the increase in premiums then requiring monthly payments of $680.67. On that date, the plaintiff-wife also filed her Motion for Order Re: Keys (#121), requesting the defendant-husband's return of "keys to the coin-operated washers and dryers located in the rental property located at 3 North Plains . . . Wallingford . . ., "which property had also been the subject of the October 23, 2006 agreement. On January 3, 2007, the plaintiff-wife filed a Motion for Contempt, Pendente Lite (#122) asserting that "the Defendant has violated [the court's] automatic orders in that the Defendant has closed out an existing bank account in the parties' joint names and has failed to continue to maintain the existing health insurance coverage" that was the ostensible subject of the October 23, 2006 agreement. Also on January 3, 2007, the defendant-husband filed a Motion to Modify, Pendente Lite (#123), alleging that "During the month of December 2006, the plaintiff . . . withdrew the sum of $13,500 from" an account maintained in the name of the defendant's business, in violation of the terms of the "Stipulation of October 23, 2006."
On January 3, 2007, the defendant-husband also filed his Motion for Contempt, Pendente Lite (#124), through which he sought the imposition of sanctions upon the plaintiff-wife for conduct related to the account withdrawal. On January 16, 2007, the plaintiff-wife filed another Motion for Contempt, Pendente Lite (#125) seeking further sanctions against the defendant-husband, upon her claims that the defendant-husband had "willfully violated the orders of the Court in that he has failed and refused to pay alimony in the amount of $175 per week and owes the Plaintiff the amount of $525 as of the filing of this motion."
On January 22, 2007, the parties entered into a stipulation (#126) resolving the following motions: the plaintiff-wife's Motion to Modify Pendente Lite Order (#120); the plaintiff-wife's Motion for Order Re: Keys (#121), the plaintiff-wife's Motion for Contempt, Pendente Lite (#122); the defendant-husband's Motion to Modify, Pendente Lite (#123); the defendant-husband's Motion for Contempt, Pendente Lite (#124), and the plaintiff-wife's Motion for Contempt, Pendente Lite (#125). On that date, the court (Rubinow, J.) entered orders in accordance with this stipulation, as follows: "The plaintiff shall return the sum of $6,750.00 to the defendant on or before 1-24-07 (Jan. 24, 2007). The defendant shall resume his weekly payments of $175.00 to the plaintiff commencing on Friday, January 26, 2007. This agreement shall resolve all pending claims for contempt by either party. The parties shall participate in at least one private mediation session with Robert Colucci as well as additional sessions as they both may agree. The parties shall each be responsible for one-half (1/2) of all mediation fees with the exception of the first session which the defendant shall pay for. #121 — Keys to be returned by defendant's counsel to plaintiff's counsel." (#126.)
In entering the January 22, 2007 orders honoring the parties' stipulation, the court noted their intention to resolve all motions for contempt then pending, including the plaintiff-wife's Motion for Contempt, Pendente Lite (#125) submitted under date of January 15, 2007 and filed with the court on January 16, 2007. See Tr. 1/22/07.
On that date, the defendant-husband agreed that he was "financially capable of resuming the weekly payments of $175.00 to the plaintiff, commencing Friday, January 26th, 2007," among other things. Tr. 1/22/07.
On February 8, 2007, approximately two and a half weeks after the court had accepted this stipulation and entered orders as requested by the parties, the defendant-husband filed the present Motion to Modify, Pendente Lite (#127.20), alleging a change in circumstances such that he "cannot afford to pay [residential] rent and continue to pay the plaintiff the sum of $175.00 per week" as alimony. On that date the defendant-husband also filed the present Motion for Contempt, Pendente Lite (#127.30), alleging in substance that the plaintiff-wife had tendered only $6,250.00 in payment to the defendant-husband instead of the court-ordered amount $6750.00."
Thereafter, on February 13, 2007 the defendant-husband applied for relief from abuse by the plaintiff wife, as contemplated by General Statutes § 46b-15 (#128). The court (Taylor, J.) granted this application ex parte; the hearing was scheduled to take place on February 23, 2007. On February 26, 2007, by agreement of the parties, that relief was continued, with modification (#130). On February 26, 2007, again by agreement of the parties, the restraining order was extended until August 23, 2007, with the added proviso that either party would be permitted to move for modification prior to the expiration date (#131).
On March 20, 2007, the parties and their able, attentive counsel commenced an evidentiary hearing concerning the defendant-husband's pending Motion to Modify, Pendente Lite (#127.20) and Motion for Contempt, Pendente Lite (#127.30). On that date, but without prejudice to either party, the court (Rubinow, J.) issued an interim order staying the defendant husband's alimony obligation for a set period of three weeks (#134).
The evidentiary hearing continued on April 10, 2007. At the close of business on the second day of the hearing, the court entered interim orders as follows: each party, or through counsel individually, was ordered to make direct contact with the mediator, Robert Colucci, and to schedule and attend a mediation session within the following month; a hearing was scheduled to take place on May 21, 2007 at which the parties will demonstrate compliance with mediation as originally ordered on October 23, 2006; and the defendant-husband's alimony obligation to the plaintiff wife was reduced from $175 per week to $130 per week, subject to review upon consideration of the evidence presented as a whole. (#138.)
II. FACTUAL FINDINGS
In resolving the pending motions, the court has thoroughly reviewed the evidence elicited through the highly effective direct and vigorous cross-testimony of the parties who served as the only witnesses at the hearing. The court has utilized the applicable legal standards in considering the totality of the evidence which also included documents such as the parties' financial affidavits, a lease, and a check. Upon deliberation, the court finds the parties to be credible in some respects, but declines to attribute full weight to all of the entirety of the evidence provided by either the defendant-husband or the plaintiff-wife, due to their conflicting and not impartial testimony regarding the issues presented at the hearing. Similarly, the court credits some, but not all, aspects of the documentary evidence adduced at the hearing. See generally Welsch v. Groat, supra, 95 Conn.App. 664. Accordingly, the court finds the following relevant facts to have been proved:
"It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The determination of the credibility of the witnesses is a function of the trial court . . ." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . `[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67.
On October 23, 2006, the parties entered into an agreement calling for the defendant-husband to pay the plaintiff-wife $175 per week as alimony. (Testimony of KD, #118.) That agreement was accepted by the court and incorporated into the orders entered on like date (#118). Tr. 10/23/06. When the orders were entered, the court had available only the defendant-husband's financial affidavit (#117) which indicated his self-employment at "Keith's Hauling and Roll-Off" and also established his access to rental income. Under ordinary circumstances, the defendant-husband secures more business opportunities in the summer than in the winter. Based on his 2005 federal tax return, reflecting annualized income, the defendant-husband's financial affidavit (#117) indicated a total net income of $265 weekly.
The plaintiff-wife is a 50% owner of his business, which involves the provision of containers for contractors and others to use in removing demolition debris from construction sites. (Testimony of KD, LD; Exhibit 1, #117, #118.)
As of October 23, 2006, the parties' jointly owned commercial property at 89 Chapel St. in Wallingford; those premises, with a garage structure located thereon (garage property), is zoned for heavy industrial endeavors but not for residential use. As of that date, the defendant-husband resided in the garage at 89 Chapel St., incurring no expenses for rent or mortgage, but his payments for pay for food and sundry expenses required an outlay of $645 per week notwithstanding his stated weekly income of $265. When the court ordered the defendant-husband then to pay the plaintiff-wife alimony in the amount of $175 per week, the order was ostensibly based upon the defendant-husband's financial affidavit; there is insufficient evidence from it which could be ascertained that any other financial information was available for consideration, such as the income or expenses of the plaintiff-wife, who had filed no financial affidavit on or prior to October 23, 2006. (Testimony of LD, KD; Exhibit 1, #117, #118.)
The defendant-husband has candidly admitted that he has not regularly adhered to the schedule of alimony payments imposed by the court on October 23, 2006; without court order or agreement between the parties permitting him to forgo payments, the defendant-husband skipped three $175 alimony payments, yielding an alimony shortfall of $525. (Testimony of KD.) This shortfall was the subject of motion #125, resolved through the court's orders of January 22, 2007 (#126), as described in Part I.
In response to the court's January 22, 2007 order, (#126), the plaintiff-wife tendered a check to the defendant-husband on January 26, 2007, contemplated as payment as reimbursement for her withdrawal of $13,500 worth of marital funds. However, instead of making the full-payment of $6,750 as ordered by the court, the plaintiff-wife tendered a check in the amount of $6,250. (Exhibit C; Testimony of KD.) In writing this check, the plaintiff-wife was aware that she was not tendering the correct amount as ordered by the court. She wrote the check for $6,250 instead of for $6,750 because, notwithstanding the fact that she had withdrawn a significantly greater amount from a marital account, she did not have sufficient funds available to pay the entire amount owed. Without intending to deprive the defendant-husband of the $500 at issue, the plaintiff-wife had, instead, unwisely used this amount to pay bills owed to third parties, directly related to the customary costs of her activities of daily living. (Testimony of LD.)
Following the entry of the alimony orders referred to above, the parties' 19-year-old son, Keith, Jr. came to live with his father at the garage property. While Keith, Jr. is employed and earns income, there was insufficient evidence from which the court could ascertain the amount he earns. While he occasionally buys groceries for himself and his father to share, there was insufficient evidence from which the court could ascertain the value of these contributions. Keith, Jr. does not contribute financial support to his father's household on a regular and consistent basis. The defendant-husband acknowledges that the garage property provided an inappropriate residence for his son. (Testimony of KD.)
In early 2007, the plaintiff-wife advised the town of Wallingford that people were maintaining a residence at the garage property. In turn, the town of Wallingford informed the defendant-husband that a residence could no longer be maintained at that location. (Testimony of LD, KD.) In direct response to the plaintiff-wife's notification to the town of Wallingford, the defendant-husband was caused to find alternative living quarters. During the winter of 2007, he sought, and found, a reasonably-priced apartment that would provide appropriate living space for him and Keith, Jr. On March 2, 2007, the defendant-husband entered into a residential lease agreement entitling him to reside in an "in law apartment" with two bedrooms, for a six-month term commencing April 1, 2007. Instead of occupying the garage property without charge, however, once he became a party to this residential lease, the defendant-husband incurred new obligations to pay a security deposit of $600, and to pay $600 per month as rent. Even so, occupancy of this apartment required the defendant-husband to pay less in rent then he would have had to pay had he rented space in the parties' two-family home, should that unit have been available to him. (Exhibit A; Testimony of LD, KD.)
On March 20, 2007, the first day of hearing, the defendant-husband submitted a financial affidavit containing data identical to that which had been submitted to the court on October 23, 2006. (Exhibit B; #133.) On April 10, 2007, the second day of hearing, the defendant-husband submitted another financial affidavit, this time acknowledging his new obligation to pay rent for his apartment, but without specific reference to his need to present a $600 security deposit for that residence. The defendant-husband's current financial affidavit indicates other changes from the conditions represented to have existed on October 23, 2006: he now avers to having increased total net weekly income totaling $560, with increased total weekly expenses now totaling $913. (Exhibit D; #137.) On April 10, 2007, for the first time, the plaintiff-wife submitted her own financial affidavit for the court's review; she currently attests to have a total net weekly income of $524, with total weekly expenses in the amount of $1,702.84. (Court Exhibit 1; #136.)
Neither the plaintiff-wife nor the defendant-husband provided consistent, detailed or knowledgeable testimony concerning the nature and extent of income or expenses provided on their financial affidavits. Overall, the financial affidavits submitted by both parties and the related testimony evince multiple inconsistencies between entries regarding their alleged sources of earned or unearned income; their obligations for deductions or expenses; and/or access to credit resources, seemingly necessary to support their alleged accrual of debt. Other than the lease and the check at issue, the court was not provided with any additional documentation to corroborate or impeach the information extended through the parties' financial affidavits. Under the totality of the circumstances, the court finds that the data presented through those affidavits, and the testimony related to that data, is largely, albeit not completely, without weight. As described in Part III., however, it is the measurement of change in the parties' circumstances, not their financial status in and of itself, that the court must address in resolving the pending motion for modification.
III. MOTION FOR MODIFICATION
In reaching its determination on the issues raised through the motion to modify (#127.20), the court has relied upon the foregoing findings of fact, and has applied the following principles of law:
The parties acknowledge that in family matters, where financial issues are the subject of the court's attention, the party moving for modification bears the burden of proving, by a preponderance of the evidence, that a substantial change in circumstances has occurred so as to implicate "the authority of the trial court to modify existing . . . orders to respond to changed economic conditions." See Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991). A finding of a substantial change in circumstances "allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes." Id. "The courts authority to modify alimony orders is found in General Statutes § 46b-86(a), which provides in relevant part that `[u]nless and to the extent that the decree precludes modification . . . an order for alimony or support pendente lite may . . . be . . . modified . . . upon a showing of a substantial change in the circumstances of either party . . .' (Emphasis added.) Additionally, [the Appellate] court has held that `[t]he [trial] court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties . . . The inquiry, then, is limited to a comparison between the current conditions and the last court order.' (Citation omitted; emphasis added; internal quotation marks omitted.) Crowley v. Crowley, 46 Conn.App. 87, 92, 699 A.2d 1029 (1997)." Angle v. Angle, 100 Conn.App. 763, 772 (2007). "The party seeking modification of a support order bears the burden of `clearly and definitely [showing] individual facts and circumstances which have substantially changed.' McGuinness v. McGuinness, 185 Conn. 7, 10, 440 A.2d 804 (1981); Prial v. Prial, 67 Conn.App. 7, 11, 787 A.2d 50 (2001)." Gaffey v. Gaffey, 91 Conn.App. 801, 806, 882 A.2d 715 (2005).
"`Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes.' Hartney v. Hartney, 83 Conn.App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). General Statutes § 46b-82 describes circumstances under which a court may award alimony. `The court must consider all of these criteria . . . It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding[s] as to each statutory factor . . . Nor need it give each factor equal weight.' (Citation omitted; internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005); see also Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Chyung v. Chyung, 86 Conn.App. 665, 669-70, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005)." Rivnak v. Rivnak, 99 Conn.App. 326, 330, 913 A.2d 1096 (2007).
Here, the defendant-husband has met his burden of proving, clearly and definitely, that a substantial change in circumstances has occurred so that the trial court may properly "modify existing . . . orders to respond to changed economic conditions." Turner v. Turner, supra, 219 Conn. 718. See also § 46b-86(a); Gaffey v. Gaffey, supra, 91 Conn.App. 806. That substantial change in circumstances is apparent upon comparison of the parties' "current conditions" to the status that existed when the October 23, 2006 orders were entered. Angle v. Angle, supra, 100 Conn.App. 772. When the first pendente lite alimony orders were entered, the defendant-husband was living at the family-owned garage property without cost to him, and without loss to the totality of the marital asset base. As of April 1, 2007, however, the evidence firmly establishes that the defendant-husband had, of necessity, become obligated to pay monthly rental charges of $600 to a non-family landlord, and had also become obligated to tender $600 as a security deposit for the privilege of acquiring access to the apartment he now occupies with Keith, Jr. The defendant-husband, seeking modification of a support order, has "clearly and definitely [shown] individual facts and circumstances which have substantially changed" insofar as his present economic commitments are concerned, warranting a modification of the extant financial orders. Gaffey v. Gaffey, supra, 91 Conn.App. 806.
Whether or not the court credits the testimony and financial affidavit tendered by the defendant-husband in an effort to establish that as of April 10, 2007, he had increased weekly income but also markedly increased weekly expenses, the court is bound to compare his present circumstances to the circumstances that affected his capacity to pay alimony as of October 23, 2007. See Angle v. Angle, supra, 100 Conn.App. 772, citing Crowley v. Crowley, supra, 46 Conn.App. 92. Upon comparison, the substantial change in the defendant-husband's circumstances is, at a minimum, measured by his new obligation to pay rent of approximately $140 per week. On the other hand, the evidence presented is insufficient to support the conclusion that there has been any concomitant change in the plaintiff-wife's financial circumstances. Based on his substantial change in circumstances, the defendant-husband is entitled to modification of his alimony obligation to the plaintiff-wife, whose conduct in fact caused him to incur the extra noted charges, albeit in the context of an alleged effort to provide Keith, Jr. with housing in conformity with the town of Wallingford's zoning code. Such modification, however, would not be effective as of February 8, 2007, the date when motion #127.30 was filed with the court; pursuant to General Statutes § 46b-86(a), the substantial change in circumstances necessitated by the plaintiff-wife's conduct prior to that date would properly become effective only as of April 1, 2007 when the defendant-husband became legally bound to pay rent in accordance with the terms of his lease.
Section 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 . . ."
The plaintiff-wife has vigorously contested the modification of the original pendente lite alimony orders, arguing in part that Keith, Jr. is available as a financial resource upon whom his father can rely for financial contributions to this new household. See Sander v. Sander, 96 Conn.App. 102, 110, 899 A.2d 670 (2006). However, there is insufficient evidence from which the court could determine that, in fact, Keith, Jr. actually makes such regular and consistent contributions as are alleged; at the very most, there is only evidence that, from time to time, Keith, Jr. purchases groceries for his father's use. Even that evidence, however, provides an inadequate measure for determining the actual value of any financial contributions Keith, Jr. makes toward his father's support. Accordingly, the Court declines to accept this aspect of the plaintiff-wife's argument in opposition to the motion for modification.
"`In cases concerning alimony, we have indicated that regularly and consistently recurring gifts, whether in the form of contributions to expenses or otherwise, are properly considered in determining alimony awards to the extent that they increase the amount of income available for support purposes.' [Unkelbach v. McNary, 244 Conn. 350, 360-61, 710 A.2d 717 (1998)]; see also McGuinness v. McGuinness, 185 Conn. 7, 12-13, 440 A.2d 804 (1981) (income of plaintiff's second wife properly considered insofar as relevant to plaintiff's current expenses and ability to pay alimony); Chyung v. Chyung, 86 Conn.App. 665, 672-73, 862 A.2d 374 (2004) (court properly may have considered domestic partners contributions to expenses when entering financial awards), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005)." (Footnote omitted.) Sander v. Sander, 96 Conn.App. 102, 110, 899 A.2d 670 (2006).
In reaching its determination that a modification is warranted for the pendente lite alimony order at issue, the court remains aware that the support orders entered on October 23, 2006 were based almost entirely upon the parties' agreement. See Sands v. Sands, 188 Conn. 98, 103, 448 A.2d 822 (1982), citing North v. North, 183 Conn. 35, 38, 438 A.2d 807 (1981). The parties had voluntarily entered into the agreement, and had voluntarily requested the court's ratification thereof; for a number of weeks, they each acted in reliance upon and in accordance with the orders entered in response to their agreement. The parties do not contest the reasonable and logical inference that as of October 23, 2006, they had reached accord as to the fair and equitable amount of alimony then to be paid by the defendant-husband to the plaintiff-wife, based on their abilities and needs at the time. Notwithstanding the fact that only the defendant-husband had submitted a financial affidavit for the court's consideration, and even though this affidavit demonstrated that the defendant-husband's expenses were nearly three times that of his declared total net weekly income, the parties' agreement formed the basis of the underlying court order. That order, entered when the defendant-husband had no obligation to pay rent to a third party, serves as the reference point for comparison and assessment as to whether there has been any substantial change in the parties' relative financial status.
For the foregoing reasons, the court has concluded that the defendant-husband has met his burden of proving that such a substantial change in circumstances has, indeed, occurred, so as to warrant modification of the pendente lite alimony obligation previously imposed. See Angle v. Angle, supra, 100 Conn.App. 772, citing Crowley v. Crowley, supra, 46 Conn.App. 92.
IV. CONTEMPT
In reaching its determination on the issues raised through the defendant-husband's Motion for Contempt, Pendente Lite (#127.30), the court has relied upon the foregoing findings of fact, and has applied the following principles of law: "`[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases . . . A finding of contempt is a factual finding . . .' (Citations omitted; internal quotation marks omitted.) Billings v. Billings, 54 Conn.App. 142, 152, 732 A.2d 814 (1999)." Rivnak v. Rivnak, supra, 99 Conn. 335; see also Legnos v. Legnos, 70 Conn.App. 349, 352-53, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002); Dowd v. Dowd, 96 Conn.App. 75, 79-80, 899 A.2d 76 (2006). "In order to constitute contempt, a party's conduct must be wilful . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind.' (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001). Although a good faith dispute or misunderstanding over the terms of an obligation may prevent a `finding of wilfulness as a predicate to a judgment of contempt . . . [w]hether it will preclude such a finding is ultimately within the trial court's discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order.' (Internal quotation marks omitted.) Id. In re Leah S., 96 Conn.App. 1, 9, 898 A.2d 855, cert. granted, 280 Conn. 911, 908 A.2d 537 (2006); see also Logan v. Logan, 96 Conn.App. 842, 847, 902 A.2d 666 (2006). A finding of contempt may not be entered where "`the contenmor, through no fault of his own, was unable to obey the court's order.' (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 527-28, 710 A.2d 757 (1998)." Jewett v. Jewett, 265 Conn. 669, 696, 830 A.2d 193 (2003); see also Carasso v. Carasso, 80 Conn.App. 299, 307 (2003). To the extent that one subject to the court's orders does not fully understand his or her obligation pursuant to the orders, it is incumbent on that person or entity to seek clarification of the court's orders. As our Supreme Court stated in Sablosky, `where there is an ambiguous term in a judgment, a party must seek a clarification upon motion . . . The appropriate remedy for doubt about the meaning of a judgment is to seek a judicial resolution of any ambiguity . . .' Id., 720. `A different conclusion would . . . encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments." (Citation omitted; internal quotation marks omitted.) Id., 722." In re Leah S., supra, 96 Conn.App. 9-10.
In this state, so-called "self help" is not a defense to contempt proceedings. "`An order of the court must be obeyed until it has been modified or successfully challenged.' (Internal quotation marks omitted.) Eldridge v. Eldridge, [ supra, 244 Conn. 530]. In Eldridge, an alimony payor was found to be in contempt for engaging in "self help" rather than seeking a modification of the alimony order, specifically, for applying credits he believed he was owed against the amounts due under the order. Our Supreme Court held that the contempt finding was not an abuse of discretion, rejecting specifically the claim that the payor's belief that he was entitled to credits necessarily precluded a finding of wilfulness. Id., 528-29; see also Sablosky v. Sablosky, supra, 258 Conn. 721 (ambiguous order does not automatically preclude finding of wilfulness)." Baker v. Baker, 95 Conn.App. 826, 831, 898 A.2d 253 (2006).
Here, the court has determined that there is sufficient evidence to support the plaintiff-wife's claim of "an adequate factual basis to explain the failure to honor the court's order." Jewett v. Jewett, supra, 265 Conn. 696, citing Eldridge v. Eldridge, supra, 244 Conn. 529; see also In re Leah S., supra, 96 Conn.App. 9; Logan v. Logan, supra, 96 Conn.App. 847. If there is any cause attributable to the plaintiff-wife with regard to her failure to honor the court's order to pay the defendant-husband the $500 at issue, competent evidence establishes that such cause is directly related to her careless use of marital funds to pay bills for her household expenses, instead of first reimbursing the defendant-husband for withdrawal from the familial account.
Taken as a whole, however, there was insufficient evidence from which the court could recently and logically adopt the defendant-husband's argument that that the plaintiff-wife unlawfully utilized the proscribed "self help" referenced above, wilfully violating the court's order by intentionally withholding $500 from the payments tendered on January 26, 2007. In the absence of a finding that the plaintiff-wife was able to comply with the court's orders, but wilfully and intentionally failed to do so, a finding of contempt will not lie. Jewett v. Jewett, supra, 265 Conn. 696; Eldridge v. Eldridge, supra, 244 Conn. 527-28; Carasso v. Carasso, supra, 80 Conn.App. 307. Here, the Court instead accepts and relies upon the sufficient evidence presented by counsel for the plaintiff-wife, and concludes that she failed to make payment in full amount of $6,750 as ordered on January 22, 2007 because she was unable to completely fulfill this obligation. In so doing, as her counsel has cogently argued, the plaintiff-wife acted in a manner or best characterized as "ill-advised or regrettable," but not contumacious in nature.
Even if such willful and intentional conduct could be supported by the evidence, the court notes that the $500 remaining unpaid by the plaintiff-wife as of January 26, 2007 nearly mirrors the $525 worth of alimony payments that the defendant-husband admitted he had previously failed to tender to her notwithstanding his court-ordered obligation to do so. (Testimony of KD, LD.) See Ruling #126. In noting this set of circumstances, in making its determinations throughout, and in fashioning its remedial rulings, the court has noted the continued uncooperative attitude of one party toward the other in the long pendente lite course of the proceedings. See, e.g., Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994). Avalonbay Communities v. Planning Zoning Commission, 260 Conn. 232, 243, 796 A.2d 1164 (2002).
Counsel for the plaintiff-wife has emphatically and sincerely argued that his client is entitled to payment of counsel fees involved $1,500 as the result of the prosecution of the pending contempt action against the plaintiff-wife. In view of the court's determination that the movant has not met his burden of proving contempt in this matter, and in view of the unreliable nature of the evidence concerning the parties' financial circumstances, other than that related to the defendant-husband's current obligation to pay rent to a third party, the court declines to exercise its discretion by awarding attorneys fees to either party. See Medvey v. Medvey, 98 Conn.App. 278, 285, 908 A.2d 1119 (2006); Esposito v. Esposito, 71 Conn.App. 744, 749, 804 A.2d 846 (2002).
"In dissolution proceedings, General Statutes § 46b-87 permits the trial court to order attorneys fees after a finding of contempt. Section 46b-87 provides in relevant part: `When any person is found in contempt of an order of the Superior Court entered under section . . . 46b-81 to 46b-83, inclusive . . . the court may award to the petitioner a reasonable attorneys fee . . .' "(Footnote omitted.) Medvey v. Medvey, 98 Conn.App. 278, 285, 908 A.2d 1119 (2006). In addition, `[a]lthough the award of attorneys fees pursuant to [General Statutes] § 46b-62 is appropriate when a complaining party has brought an unsuccessful contempt action, where contempt is established, the concomitant award of attorneys fees properly is awarded pursuant to [General Statutes] § 46b-87 and is restricted to efforts related to the contempt action.' Esposito v. Esposito, 71 Conn.App. 744, 749, 804 A.2d 846 (2002)." Id., 285 n. 6. "`[i]t is axiomatic, however, that the determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors, among which the time and labor expended is but one consideration.' Esposito v. Esposito, [supra, 71 Conn.App. 749]. Moreover, `because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the [contemnor's] behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award.' Id., 750." Medvey v. Medvey, supra, 98 Conn.App. 286.
V. CONCLUSION
The probative evidence presented at the hearing establishes that the defendant-husband has met his burden of proving a substantial change in circumstances, relative to those existing when the court entered its orders on October 23, 2006, such as to warrant modification of the alimony obligations imposed on that date. The evidence was not sufficient, however, to support the defendant-husband's claims that the plaintiff-wife stands in contempt of court for having paid him $6,250 on January 26, 2007 instead of the $6,750 then due and owing to him. Accordingly, the Motion to Modify, Pendente Lite (#127.20) is hereby GRANTED, and Motion for Contempt, Pendente Lite (#127.30) filed by the defendant-husband is hereby DENIED.
Following an evidentiary hearing such as that presented in the case at bar, "`even 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); Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994)." Avalonbay Communities v. Planning Zoning Commission, 260 Conn. 232, 243, 796 A.2d 1164 (2002). Given the available evidence concerning the parties' relative financial circumstances, and the demonstrated cause for modification of the original pendente lite alimony orders, the court has determined that the defendant-husband henceforth shall pay pendente lite alimony to the plaintiff-wife in the amount of $130 per week.
WHEREFORE, IT IS HEREBY ORDERED that the defendant, Keith DeVit, pay to the plaintiff, Lori DeVit, pendente lite alimony in the amount of $130 per week.
BY THE COURT,