Opinion
No. FA 09 4008128
March 23, 2011
MEMORANDUM OF DECISION
The court (Ginocchio, J.) dissolved the marriage of the parties on an uncontested basis on March 4, 2010. The separation agreement of the parties was incorporated in the judgment. The parties have each filed a postjudgment motion, both of which were heard for a full day on March 15, 2011. Each motion is discussed below.
Defendant's Motion to Modify (#137)
Article V of the separation agreement provides that the defendant, Gavin Smith, is to pay child support in the amount of $219 per week for three minor children plus one-half of work-related day care expenses of $50 per week. In addition, the separation agreement provides that the defendant is to pay the mortgage on the former marital home in the amount of $2,719 per month until the property is sold. The defendant's motion to modify requests that the court reduce these obligations.
The defendant relies upon the following to obtain a modification: 1) one of the children, Spencer, turned 18 on April 30, 2010 and graduated from high school in June 2010. The defendant's motion to modify was filed on January 4, 2011; and 2) the defendant's financial affidavit reflects a decrease in net earned income from $457.77 per week at the time of the dissolution to $116 currently; and 3) the plaintiff deposited more money into her bank account than he did in 2010.
The defendant is entitled to have his child support recalculated based upon only two minor children rather than three. But, the evidence that the defendant has suffered an involuntary reduction in his earnings was unconvincing. The defendant is a self-employed carpenter/painter/handyman. Since the dissolution on March 4, 2010, he has allowed his professional licenses to lapse and his liability insurance to be terminated. His excuse is that he could not afford the fees for these matters because his business declined so badly. The court does not find his testimony credible. He has a long history in this field and has always been able to earn a living. If his income has decreased, it has been self-created. He has the capacity to earn at least as much as he was making at the time of the dissolution. The plaintiff argues that the defendant has an earning capacity of $1,500 per week. This figure is rejected as not supported by the evidence. For purposes of recalculation of child support, the court will use the income reflected on his financial affidavit filed with the court on March 4, 2010. This reflects gross income of $764 per week. The plaintiff's net income is $609 per week. The court has had Family Services create the child support guidelines worksheet attached to this decision. It shows that the defendant's presumptive child support order is $163. To this must be added the day care of $50 per week. These new figures take effect immediately as the court does not choose to exercise its discretion to make the order retroactive.
The final reason for modification given by the defendant is irrelevant to the issues at hand. The defendant did a detailed calculation that the plaintiff deposited $73,810 in her bank account in 2010 while he only deposited $38,111. The plaintiff testified that $73,810 does not reflect her income. Her family made gifts and loans to her during 2010 which were necessary because of the defendant's failure to pay his obligations. She also received security deposits during 2010 which passed through her account. The court finds credible the plaintiff's testimony that her net 2010 earnings were $16,969.80, that her gross rental receipts were $21,600, and that she received $19,450 from the defendant after the date of judgment. Even if $73,810 was an accurate reflection of the plaintiff's 2010 income, it would have no bearing upon the obligations which the defendant voluntarily agreed to pay when he signed the separation agreement, and when he swore to the court that he found the separation agreement to be fair and equitable.
The defendant has also moved to modify his obligation to pay the mortgage on the former marital home until it is sold. He claims that he has no ability to pay $2,719 per month. He points to his claimed reduction in income since the date of the dissolution. As discussed above, the court does not credit the defendant's testimony on this point. The court finds that the defendant's income has not been involuntarily decreased in the one year since the dissolution. In addition, comparison of the financial affidavits indicates that the defendant's weekly expenses have decreased.
It is not clear how the defendant planned to pay the full mortgage when he agreed to do so at the time of the dissolution hearing. His testimony now is that he agreed to pay it because he is an "optimist" and he expected his fortunes to improve. He was represented by experienced counsel at the time and was canvassed by the court prior to the acceptance of the agreement as to whether he felt that the agreement was fair and equitable. Our Appellate Court has noted in similar situations: "[A]lthough one may sympathize with the position in which [a party] finds himself the fact remains that by the separation agreement he made his bed and now must lie in it." (Internal quotation marks omitted.) Sheppard v. Sheppard, 80 Conn. App. 202, 217 (2003). The court will not grant the relief requested by the defendant.
Plaintiff's Motion for Contempt (#138)
The plaintiff moves that the defendant be held in contempt of court for the following alleged violations of the dissolution judgment: 1) Failure to complete the parenting education course; 2) Failure to pay a child support arrearage set forth in the separation agreement; 3) Failure to make any of the mortgage payments since the date of the dissolution; 4) Failure to pay his share of the higher education costs for the oldest child, Gavin, Jr.; 5) Failure to attempt to obtain life insurance; 6) Failure to pay attorneys fees of $1,000; 7) Failure to remove personal property from the former marital residence. Each of these alleged violations is discussed below.
1. Parenting Education
The final judgment provided that the defendant shall complete parenting education by September 15, 2010. The defendant has not taken the parenting education course because he says that he cannot afford the admission fee of $165. The defendant is found to be in wilful contempt of this court order. The defendant would be entitled to a fee waiver if he can establish that he is indigent. The defendant is ordered to complete the parenting education course on or before the next hearing date in this case, and to submit to the court (Attention: Mark Shea) the certificate of completion.
2. Child Support Arrearage
Article V of the separation agreement provides that: "Additionally, Husband owes the sum of $3,211 through 3/4/10 in past due child support to Wife, which amount includes the amount due from him for work-related day care under the pendente lite orders." There is no time for payment specified. Therefore, the defendant cannot be found to be in wilful contempt of this particular order. However, it is equitable that payment be made within a reasonable time.
The current child support payments plus day care expense must be resumed immediately. At the time of the next hearing date the defendant must show that current child support payments at the new figure plus the day dare expense have been made faithfully from the time of this order until the time of that hearing. At that time the court will determine a method for paying the arrearage in child support.
3. Mortgage Payments
As discussed earlier, the defendant was ordered to make the mortgage payments until the property is sold. The total mortgage payments due for 2010 = $32,820. The defendant's payment history for 2010 is as follows: total payments made = $19,450; applied to child support and day care = $11,388; balance applied to mortgage = $8,062; unpaid mortgage payments = $24,758. This sum must be increased by the unpaid payments since January 1, 2011. The defendant is in wilful contempt of court for his failure to make these payments. The only reason that the plaintiff was able to pull the property out of foreclosure, and to keep it out, is that the plaintiff was able to borrow $25,000 from her brother.
The court is in a quandary about an appropriate remedy. The amount owed is so large compared to the plaintiff's current capacity, even viewed in a favorable light as the court has chosen to do. For this reason, the court will defer decision on the remedy until another hearing can be held to establish that the defendant is now fully employed and that he is attempting to secure side jobs to earn additional money to help pull himself out of the predicament in which he finds himself. The defendant must demonstrate that he is aggressively pursuing every available means to enable him to live up to his agreement. It is also important that the plaintiff continue to actively market the property.
4. Higher Education Costs
Article XVI of the separation agreement provides that the defendant shall pay one-half of the higher education costs of the children including Gavin who was already in college. It also provides that the defendant already owes the plaintiff $1,485 for past higher education expenses which shall be paid by May 1, 2010. The defendant has not paid the $1,485, nor has he paid his share of Gavin's expenses for the 2010 spring semester in the amount of $800. As a result, the college has refused to release Gavin's grades. The defendant is in wilful contempt of the terms of the separation agreement. Decision on a remedy will be deferred until the next hearing date.
5. Life Insurance
Article XV of the separation agreement provides that the defendant shall attempt to procure life insurance of not less than $300,000 naming the plaintiff as trustee for the children. The defendant admitted that he did not make any effort to obtain life insurance because he did not think that he would qualify in light of his financial condition. The defendant is in wilful contempt of the separation agreement by failing to even attempt to obtain insurance when he had agreed to do so. At the time of the next hearing the defendant must submit documentation that he has attempted to procure life insurance as he agreed to do.
6. Personal Property
Article III of the separation agreement provides, in relevant part, that the defendant shall remove his business tools, inventory and hazardous waste (materials) within 30 days or the plaintiff shall be paid the cost of removal. The defendant has not removed these items nor has he paid the plaintiff to remove them. The defendant claims that he cannot afford a dumpster. The defendant is found to be in wilful contempt of court for failing to obey this order which he had agreed to fulfill. The defendant is ordered to remove these items by the time of the next hearing.
Conclusion
This case shall be scheduled for a hearing six to eight weeks from the date of this decision. The defendant shall be in compliance with each of the orders set forth above. The court will not look favorably upon any failure to comply. The remaining matters which were deferred will be heard by the court after they have been discussed with Family Services in an attempt to reach resolution.