Opinion
FA030404835S.
12-10-2012
Dennis J. FRAIOLI v. Christine T. FRAIOLI.
UNPUBLISHED OPINION
OWENS, J.T.R.
Defendant seeks a Contempt order claiming that the plaintiff has failed to pay an: unallocated order of alimony and child support pursuant to a judgment of the Court entered on January 26, 2005. The original order was for $5,000 per month. Subsequent to a motion to modify filed by the plaintiff on April 3, 2008 based on the signed agreement of the parties the alimony order was suspended and child support was reduced to $60.00 per week. The plaintiff was to appraise the Defendant's attorney immediately upon him obtaining new employment. The Court further clarified the Agreement by ordering that regardless of whether the Plaintiff notified the Wife's counsel of his new employment, the alimony obligation was to effectively resume upon the start of employment. By Motion to Reinstate dated January 25, 2010, the Defendant-Wife sought to have the alimony Order reinstated. At that time the Court found that no evidence had been produced to show that the Plaintiff had become employed; and, therefore, the alimony Order remained suspended; however, all Orders, both from the original decree and the orders of the April 3, 2008 hearing on the Motion to Modify, remained in effect. By Motion dated July 6, 2012, the Defendant asks this Court to find the Plaintiff in contempt on the grounds that he had become gainfully employed and yet failed to either notify the Defendant of such a fact or resume the alimony payments, all in accordance with the prior Court Orders. By Motion dated September 11, 2012, the Plaintiff asks the Court to find the Defendant in contempt for her failure to contribute to the repayment of certain student loans. By Motion dated September 11, 2012, the Plaintiff asks the Court to modify the unallocated alimony and support order because the younger child had reached majority.
At the time that the Judgment of Dissolution of Marriage entered on January 26, 2005 the parties had two (2) minor children. In anticipation of the divorce and in preparation for the Separation Agreement, both parties completed and filed with the Court sworn financial affidavits. The Plaintiff's affidavit reflected a weekly net disposable income of $2,074.00 and living expenses of $3,064.00. The Defendant's affidavit reflected a weekly net disposable income of $232.00 and living expenses of $2,508.00. The parties completed a child support guidelines worksheet that calculated the Plaintiff's weekly child support obligation to be $437.00. The Separation Agreement contains an unallocated monthly child support and alimony order of $5,000.00, however, there was no finding by the Court (Fischer, J.) that the child support calculation deviated from the Guidelines as mandated by C.G.S. § 46b-215(e). Prior to March 2008, the Plaintiff lost his job. By July 27, 2008, all of the parties' children were adults. On or about April 1, 2011, the Plaintiff resumed employment. As per the Husband's current sworn affidavit his weekly net disposal income is presently $1,925.59 and his living expenses are $1,392.08. As per the Wife's current sworn financial affidavit her weekly net disposal income is presently $536.17 and her living expenses are $910.27.
Contempt is the means for the enforcement of the Court's orders and is predicated upon its general equitable powers. Stoner v. Stoner, 163 Conn. 345, 358 (1972). To find that a party is in contempt, the Court must determine that he has willfully failed to comply with an order, although he is capable of doing so. Turgeon v. Turgeon, 190 Conn. 269, 282-83 (1983). The moving party must prove that the nonmovant has failed to comply with the Court's order. Having done so, the burden then shifts to the nonmovant to prove any defense that may be available that will demonstrate that his failure to comply was not willful. Connolly v. Connolly, 194 Conn. 468, 482-83 (1978).
The parties entered into a Separation Agreement which was incorporated into a Judgment of Dissolution of Marriage. Included in the Separation Agreement was the obligation of the Plaintiff-Husband to pay $5,000.00 per month as unallocated alimony and child support. The parties prepared and filed sworn financial affidavits which were then utilized to calculate the weekly child support payment and the worksheet become part of the Court's file. There is no evidence that the child support amount reflected in the worksheet was deviated from.
In February of 2008, having lost his job, the Plaintiff filed a motion to temporarily modify the alimony obligation so as to suspend it until such time as he was reemployed. The request was for temporary relief. The Court ordered a(3) month period of relief and directed that the parties return three (3) months after the Order entered. The Court further imposed an affirmative duty upon the Plaintiff-Husband to report to the Defendant-Wife when he resumed employment. And finally, the Court decided that whether you report it or not, the resumption of the obligation was retroactive to the date of the employment.
The Defendant asked the Court to order the resumption of payments. Absent evidence that the Plaintiff had actually returned to work, the Court denied the Motion to reinstate. There is no dispute that the Plaintiff returned to work in April 2011. There is nothing in the context of the original orders, his Motion to Suspend or her Motion to Reinstate that would terminate a permanent order because of a temporary condition. His conduct was willful and knowing.
This Court must decide what portion of the unallocated order is alimony.
The Plaintiff's income as represented on his financial affidavits, as on file, dated January of 2005 and September of 2012 are virtually the same. However his present expenses, as shown on his current affidavit, are $984.00 a week or $4,231.00 a month. The Separation Agreement of 2005, Page 16, Paragraph 8.5, indicated the Defendant-Wife's income was $14,820.00. Her current earnings represent an income of $34,385. Taking into consideration that Paragraph 8.5, Page 16 of the Stipulation Agreement allows her to earn $20,000.00 in addition to the $14,820.00, without it being grounds for modification; in essence, her affidavit is basically the same. The alimony portion of the $5,000.00 unallocated order can be computed by simply deducting the amount of the weekly child support that was computed at the time of the dissolution. The guidelines computation sheet on file that was prepared at the time of the dissolution indicated the child support, without deviation, to be $437.00 per week. By computing child support portion of the unallocated amount by multiplying the same by 4.3 weeks, and subtracting the same from the order the alimony portion of the original order was $3,120.90.
Original Alimony $5,000.00 per month
Less Child Support, $1,879.10 ($437/mo. x 4.3 weeks)
Net Alimony $3,120.90
In Tomlinson v. Tomlinson, 305 Conn. 539, 2012, the principal issue was whether a trial court could modify an order regarding unallocated alimony and child support payments when the dissolution judgment contained a provision providing that such payments were unmodifiable. The court did take up the issue of how to compute the alimony portion of the order once child support is no longer an issue; and notwithstanding that, the Supreme Court indicated that it disfavors unallocated alimony and support orders, that it still was an acceptable means to compute the alimony portion of an order by deducting the child support, that was computed in accordance with the guidelines from the total order; if, in fact, there was no deviation at the time the child support was computed and the financial circumstances of the parties has not materially changed. The guideline computation sheet, as on file, appears to be a true representation of the parties' status at the time of the divorce without deviation.
The Supreme Court in Tomlinson goes on to conclude that the trial court, in that case, improperly may have relied on the presumptive guidelines amount in calculating that portion attributable to child support at the time of dissolution. However, they go on to state that there is a rebuttable presumption that the figure arrived at under the guidelines in the proper amount of child support, citing General Statutes § 46-215b. The Court goes on to say that it does not follow necessarily that the child support was equivalent to the presumptive guideline amount.
The Plaintiff's Motion for contempt claims that the Defendant is also liable for the obligation that he solely contracted with Sallie Mae. The Defendant never formally assumed the obligation to Sallie Mae which, at the time of the divorce, approximately $117,412.00, as per the Plaintiff's Financial Affidavit, dated January 26, 2005. She did agree that the obligation could be satisfied from the proceeds of the sale of the parties' second home on Church Hill Road. The testimony supports the claim that she agreed to have the obligation paid out of the proceeds of the sale of Church Hill Road home. The outstanding balance to Sallie Mae has increased from the original amount at the time of the divorce ($117,412.00) to its present amount of $164,042.00, as set forth on Plaintiff's current Financial Affidavit.
The Defendant testified that due to the crash in the real estate market the net proceeds from the sale of the Church Hill Road property, which had been intended to satisfy the Sallie Mae obligation, only netted $20,000.00. The Defendant claims she informed the Plaintiff that she wanted to apply the $20,000.00 to the loan.
The Defendant claims that the alimony portion of the unallocated Order of January 26, 2005 resumed after a suspension on April 1, 2011, when the Plaintiff obtained employment of $140,000.00 a year, plus commissions and that the alimony is $3,129.20 a month or $728.00 a week.
The Court is satisfied that it was the intention of the parties that they would both share equally in any deficiency. It is ordered that Defendant pay 50 percent of any deficiency owed to Fannie-Mae. It might very well be that a settlement can be negotiated but in any event the Plaintiff shall have a 50 percent credit for any sums he may have advanced.
The Court is deferring judgment on the issue of contempt and attorneys fees until the alimony is paid and the issue of the Fannie-Mae payment is resolved between the parties. If it is not resolved within two weeks the parties shall notify the Court so that the matter may be rescheduled.