Opinion
No. FA 07 4029193
May 18, 2011
MEMORANDUM OF DECISION
I BACKGROUND
The defendant filed a post-judgment motion, No. 128, for modification of his alimony and child support orders. This motion was served upon the plaintiff on April 26, 2010. In his motion, the defendant seeks modification of the original order of support in the dissolution judgment, entered by the court, Brennan, J., on November 16, 2007.
The judgment in this case was entered by the written agreement of the parties and provides for alimony in the annual amount of $24,000 for a period of eight (8) years, paid by the defendant in installments of $1,000 on the first and fifteenth of each month. The language of the judgment specifically provides that "[t]he alimony obligation shall be nonmodifiable as to term and amount." See Agreement, § 3. The judgment also specifically recites the understanding of the parties that this "alimony obligation is based on Patrick's earning capacity of $141,000 per year." Id. With regard to child support, the judgment requires $17,732 to be paid annually in installments of $682 on the first and fifteenth of each month with a self executing "age out" reduction for the oldest child. This child support provision similarly recites the earning capacity of the defendant as $141,000. See Agreement, § 2.
The defendant's total bimonthly support obligation is $1,682, which is payable on the first and fifteenth of each month. However, during the pendency of the defendant's motion to modify, he unilaterally reduced his bimonthly support payments to $216 per week, beginning in mid-October; with $191 attributable to child support and $25 attributable to alimony. These weekly payments have been made consistently since October 18, 2010.
The plaintiff's motion for contempt, No. 140, immediately followed the defendant's unilateral reduction of support and was filed with the court on November 5, 2011. Previously, the plaintiff had filed a motion for contempt on May 29, 2010, alleging the defendant's failure to pay his share of unreimbursed medical expenses. This motion was immediately followed by a motion for attorneys fees, No. 130. On February 10, 2011, the plaintiff filed an additional motion for contempt, No. 145, again alleging the defendant's failure to pay his court-ordered obligation to share the cost of unreimbursed medical expenses, including an expense incurred for orthodontics. This motion appears to supersede motion No. 129. An additional motion, No. 146, was filed by the plaintiff on February 14, 2011 to modify the existing order for the division of tax exemptions for the 2010 tax year, based upon the allegations of contempt.
II
ADDITIONAL FACTS
The parties generally agree upon the background of this case, as recited above. They disagree, however, upon many of the following factual claims and allegations, and in particular that the defendant is unable to earn $141,000 per year. He claims he was mistaken in his belief at the time of judgment that he was capable of earning $141,000 per year and that, despite his efforts, this agreed upon earning capacity is impossible for him to achieve. At the time of the dissolution, the defendant was unemployed and receiving $1,500 per week in self-described gifts from his father. The defendant's father testified that these payments were loans from the proceeds of a $200,000 life insurance policy on the life of his wife, who passed away shortly before the dissolution of marriage complaint was filed.
Prior to the dissolution, the plaintiff earned $141,000 in 2006 as a manager and team leader of a group of financial planners. After this job was eliminated, he found temporary employment in 2007 with another company involved in software sales, with four-month contracts and remuneration of approximately $40,000 to $45,000 per four-month period. Although this employment involved commissions, the defendant testified that, annually, he would only have been able to make approximately $105,000. The defendant claims that he was unsuccessful in this employment endeavor because he was unqualified for the position. He also conceded that the precipitating circumstance of his separation from employment in August 2007 involved allegations of sexual harassment. The defendant nonetheless received unemployment compensation, suggesting he was not fired, which, at the time of the judgment, was in the gross weekly amount of $503. Together with the weekly gifts of $1,500 from his father, the defendant's actual gross weekly income at the time of dissolution in 2007 was $2,003, as reflected on his financial affidavit. Annualized, this totals to $104,156.
The defendant has since found gainful employment as a financial planner with a nationally recognized investment firm. According to his tax returns, his total income from employment in 2008 was $59,884. In 2009 it was $72,734 and in 2010 it fell to $63,794. Despite this income, the defendant has until recently been consistently assisted by his father, who has paid many thousands of dollars to subsidize the defendant's support obligations, which have enabled him to live a comfortable life on a significantly lower income than anticipated by the parties. These payments have been in the form of cash gifts from the proceeds of his mother's life insurance policy, free use of a credit card and free or discounted sundries and prescriptions from Mr. Griffin Senior's pharmacy. Mr. Griffin Senior, however, has credibly testified that the insurance proceeds have been expended and have been unavailable to assist the defendant since October 2010, after which the defendant unilaterally adjusted his support payments.
III
DISCUSSION
These motions for modification and contempt were tried to the court on May 10, 2011, at which both parties were represented by counsel. First, the defendant's motion to modify, No. 128, is granted in part; second, the plaintiff's motion No. 140 for contempt is granted, and finally, the plaintiff's motion for contempt, No. 145, is denied for reasons set forth as follows. All other motions are denied, except that attorneys fees are granted as a part of the court's orders resulting from the defendant's contempt.
A. Motion to Modify
1. Alimony
The specific language of the separation agreement provides that "[t]he alimony obligation shall be nonmodifiable as to term and amount." It also specifically recites the understanding of the parties that this "alimony obligation is based on Patrick's earning capacity of $141,000 per year." The defendant therefore asserts that the alimony order is modifiable, based upon the parties' mistaken understanding of the defendant's income capacity, rendering compliance with the $1,682 bimonthly support impossible, $1,000 of which is for alimony. The court disagrees.
To begin the court's analysis, the court looks to the relevant statutory language, authorizing the modification of alimony. General Statutes § 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification . . . an order for alimony . . . may at any time thereafter be . . . altered or modified . . . upon a showing of a substantial change in the circumstances of either party . . ."
In interpreting a separation agreement that is incorporated into a dissolution decree, the trial court must be "guided by the general principles governing the construction of contracts . . . A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . ."It is well established within our jurisprudence that provisions which preclude modification of alimony or support tend to be disfavored . . . In accordance with the preference in favor of modification, ambiguous nonmodification provisions are construed to permit modification . . . Nonmodification provisions that are clear and unambiguous, however, are enforceable." (Citations omitted; internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692-93, 941 A.2d 301 (2008).
First, the court finds as a matter of fact that defendant's actual income has changed substantially since the time of dissolution. Further, the court finds that the defendant's income capacity has similarly changed substantially since the time of dissolution. At the time of judgment, the plaintiff's annualized income was $104,000 from unemployment compensation and gifts from his father, with an inflated but not unreasonable expectation of an income capacity of $141,000 per year. Although this expectation has not come into fruition over the course of several years, it was not a "mistake" at the time the separation agreement was signed.
Although the nonmodification of alimony provision is built upon an assumption that the defendant would continue to earn what he had earned in the past, no other significant, a priori assumption has changed since the time of the judgment. He currently appears to be healthy and appears to remain licensed in his profession. At the time of the dissolution, he had separated from employment under circumstances which may have called into question his capacity to manage others, and particularly women, but he either knew or should have known this at the time of the judgment. However, the court also finds he was unqualified for this job he lost selling software. Further, it was unreasonable for the parties to believe that the gifts he received from his father would continue in light of the finite source of these gifts and that they began not long before the dissolution. The major change in circumstances is that the defendant is now employed and unable to make the same money he was able to earn in 2006. This change in circumstances, by inference, appears to be in the marketplace for his services, which have proven to be diminished over the course of nearly five years.
The court concludes that the defendant's current income capacity is $73,000 annually, which corresponds with his income in 2009; his highest yearly income since 2007. However, based upon the defendant's actual income and his new income capacity, the court further finds as a matter of fact that it was not impossible for him to meet his support obligations. Although this was particularly true when the defendant was regularly receiving gifts from his father, it remains true today.
"The doctrines of impossibility or impracticability of performance are recognized exceptions to the traditional rule that contracts should be enforced as written. Dills v. Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989). The doctrines evolved `in recognition of the fact that certain conditions cannot be met because of unforeseen circumstances.' Id. Section 261 of the Restatement (Second) of Contracts provides: `Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.' West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 313, 514 A.2d 734 (1986).
`A party claiming that a supervening event or contingency has prevented, and thus excuses, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused and (4) the party has not assumed a greater obligation than the law imposes.' Dills v. Enfield, supra, 210 Conn. 717. The doctrines also apply to an `existing impossibility,' i.e., a situation in which the event or contingency relied upon existed at the time the contract was made. Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn.App. 101, 106, 543 A.2d 775 (1988); Restatement (Second) of Contracts § 266 (1981). A party claiming existing impossibility must also show that he or she `had no reason to know at the time the contract was made of the facts on which he later relies.' Restatement (Second) of Contracts § 266 (1) and comment a (1981)." McMahon v. New London County Mut. Ins. Co., Superior Court, (J.D. unreported) Docket No. CV 98 0408032 (August 23, 1999, Jones, J.).
The plaintiff would like the court to assume that these gifts the defendant received will continue, as provided in our caselaw. "Where the past gratuities have been made on a regular basis the court may reasonably assume that those contributions will continue." Unkelbach v. McNary, 244 Conn. 350, 361, 710 A.2d 717 (1998); citing Anderson v. Anderson, 191 Conn. 46, 55-57, 463 A.2d 578 (1983). However, the CT Page 11888 Unkelback case also provides for an exception to this general rule. "A donor is entitled to cease making gifts at any time and, at such time as that occurs, the parent may seek a modification of the child support obligation based upon the resulting reduction in income, without penalty to either the parent or the donor." Id. at p. 363.
Although Mr. Griffin Senior has provided significant gifts to the defendant for the purpose of meeting his support obligations, he no longer has available the financial resource he used to do provide these gifts in the past. He therefore discontinued his cash payments to the defendant in October, when the life insurance benefit for his wife was depleted. Although there may be some continued gifts received by the defendant from his father, they have diminished significantly and cannot easily be quantified for purposes of alimony or child support determinations.
"The statutory provisions governing awards of alimony and child support employ many of the same criteria. See General Statutes §§ 46b-82 through 46b-86. As a result, this court has previously held that alimony and child support are issues that are `entirely interwoven' and require similar treatment." Unkelbach v. McNary, supra, 244 Conn. 361, n. 4.
Having found the substantial change in the defendant's financial circumstances, the court must therefore address the question of whether the alimony provision is nonmodifiable. The court finds that the language of the separation agreement is clear and unambiguous. It clearly states that alimony is nonmodifiable as to term and amount. The court therefore finds that the alimony order in this case is nonmodifiable.
Not every error in judgment should become the basis to nullify a contract, let alone one that forms the basis of a nonmodifiable final judgment, especially where, as here, that contract and judgment are not impossible to perform. Even if compliance with the order were determined by the court to be impossible, the law of contempt accommodates this potential problem in requiring willfulness. Further, any equitable remedies imposed in contempt proceedings may take into consideration the difficulty and efforts made by a party to comply with court orders.
Based upon the facts of this case and in light of the finding that the alimony agreement of the parties is nonmodifiable, the court will not consider a collateral attack on the final judgment of the court in this case based upon the doctrines of mistake or impossibility. Although a basic assumption of the parties is, in the end, proven erroneous, the language of the judgment clearly states that the award of alimony is nonmodifiable. Therefore, the plaintiff's motion to modify alimony is denied.
A determination by the court that the alimony provision in this case is nonmodifiable gives rise to the question of jurisdiction. The language of General Statue § 46b-86(a) specifically provides for the continuing jurisdiction of our courts to modify alimony and support, unique to the law of dissolution. Absent this statutory authorization, a judgment of dissolution would be final, as any other judgment, and would not be modifiable except under the rules involving opening final judgments, generally. Although a motion to dismiss this motion to modify has not been filed, the court is nonetheless obligated to consider the question of subject matter jurisdiction. Although the court has found no specific authority on this point of law in the context of dissolution proceedings, appellate cases involving findings of nonmodifiable alimony have not generally resulted in dismissals. Absent clear authority, the court will not dismiss the motion to modify, sua sponte. In an unrelated dissolution matter, our Supreme Court has stated that "[a]lthough related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute . . . The trial court's statutory jurisdiction to order alimony is well settled." (Citations omitted. internal quotation marks omitted.) Smith v. Smith, 249 Conn. 265, 268, footnote 4, 752 A.2d 1023 (1999).
2. Child Support
Based upon the substantial change in circumstances found by the court, the defendant's motion to modify child support is granted. In light of the court's previous findings concerning the defendant's income capacity of $73,000, the presumptive weekly child support is ordered in the amount of $198. Annualized, the presumptive amount is $10,296. Consistent with the agreement of the parties, the defendant is to pay child support on a bimonthly basis in the amount of $429. Pursuant to the guidelines, unreimbursed medical expenses and qualified day care expenses are to be divided as follows: 18% to be paid by the defendant and 82% to be paid by the plaintiff. Other terms and conditions of payment shall apply, as provided for in the judgment.
Having modified the defendant's child support, the court must now consider the question of retroactive application. General Statutes § 46b-86 provides in relevant 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." Pursuant to the provisions of General Statutes § 46b-86, therefore, the court may retroactively apply the motion to modify to the date of service. An order of retroactivity is, however, a matter within the court's discretion. Cannon v. Cannon, 109 Conn.App. 844, 850, 953 A.2d 694 (2008).
The court has previously found that the defendant's motion to modify was served over one year ago on April 26, 2010. Based upon this and other facts in this case, the court will exercise its discretion and order the retroactive modification of child support. This order is made retroactive to October 15, 2010, at which time the defendant unilaterally reduced his child support payment to $191 per week. There are several considerations leading the court to this conclusion. First and foremost, the defendant's income changed substantially in October when his father ceased paying cash assistance to him from his mother's dissipated death benefit. Second, this motion has been pending for over one year, while the defendant's earned income has been, for many years, half the income presumed and imposed by the 2007 agreement of the parties. Based upon the retroactive application of this new child support order, an arrearage is found in the amount of $217 as of May 15, 2011.
B. Motions for Contempt
The plaintiff has filed three motions for contempt. The first is for the defendant's failure to pay alimony and child support. The other two involve the defendant's failure to pay for unreimbursed medical expenses.
1. Alimony and Child Support
The Supreme Court has recently reiterated the standard applicable to civil judgments of contempt in the case of In re Leah S., 284 Conn. 685, 935 A.2d 1021 (2007). The court explained: "[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt . . . Second, if . . . the underlying court order was sufficiently clear and unambiguous, [the trial court must then determine] . . . whether the violation was wilful or excused by a good faith dispute or misunderstanding." (Citations omitted.) Id., at 693-94.
"The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion." (Citation omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
There is no question over the clarity of the court's orders or the plaintiff's noncompliance with the bimonthly alimony and support orders since October 15, 2010. The question in this case is the defendant's willful noncompliance with these orders. There is no doubt that the defendant's income changed in October. However, he chose to radically adjust his alimony and child support payments, instead of adjusting his own lifestyle. Knowing the nature and source of the income he received from his father, the defendant should be expected to have anticipated this serious change in his income. To some degree, he appears to have done this by filing this motion to modify well over a year ago and well before his mother's death benefit proceeds ran out. Although a delay of contempt proceedings alone is not a lawful excuse for disobeying a court order, the willfulness of a party's noncompliance is always a question of fact for the trial court to consider. See Mulholland v. Mulholland, 31 Conn.App. 214, 223-24, 624 A.2d 379 (1993); affirmed Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994).
On the other hand, parties may not resort to self-help absent clear language or otherwise by agreement of the parties. In Sablosky v. Sablosky, 258 Conn. 713, 784 A.2d 890 (2001), the Supreme Court reiterated the rule that a party may not resort to "self-help . . . by disobeying the court's order without first seeking a modification . . ." (Internal quotation marks omitted) Id. at 720, quoting Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). The Supreme Court's "decisions in Sablosky and Eldridge serve to enforce an important public policy against resorting to self-help tactics." In re Leah S., 284 Conn. 685, 699, 935 A.2d 1021 (2007). Stated more simply, court orders must be obeyed until modified or successfully challenged in a court of law. See Mulholland v. Mulholland, supra, 229 Conn. 649.
In his defense of the allegation of contempt, the defendant claims he was unable to pay the nonmodifiable, bimonthly alimony award of $1,000, as well as his child support obligation of $682. Instead of paying $1,682 bimonthly, he unilaterally decided to radically reduce his bimonthly payments to $216 per week, which he has paid since October 18, 2010. This reduced amount of support represents less than 28% of his court ordered payment. Annualized, it represents less than 18% of his actual total income in 2010. Although the court has recognized that the defendant's actual and imputed incomes are considerably lower than the $141,000 figure presumed in the judgment, this deep, unilateral reduction of total support was unjustifiable under the facts of this case. The defendant is therefore held in contempt of his order of alimony and child support. The court finds an alimony arrearage in the amount of $14,225.
In addition to the alimony arrearage of $14,225, the court has also found a child support arrearage owed in the amount of $217, based upon the retroactive application of the new, presumptive amount of child support. The total support arrearage is $14,442 and is to be paid in bimonthly installments of $100, in addition to his bimonthly support payment of $1,429, for a total bimonthly payment of $1,529 until the arrearage is paid in full.
2. Attorneys Fees
For his contempt, the defendant is ordered to pay a significant portion of the plaintiff's attorneys fees in the amount of $4,000, plus costs of $484.86 as reflected in the affidavit submitted to the court. Although the defendant's motion to modify child support was ultimately justified, the subsequent, unilateral acts of the defendant turned this reasonable plea into an unjustifiable contempt, requiring significant, additional legal expenses to be incurred by the plaintiff. In recognition of the substantial marital debt of $30,000 to Bank of America, still owed by the defendant, as well as this new arrearage and the defendant's limited assets, the court will simply add this amount to the arrearage owed to the plaintiff. The total arrearage, including attorneys fees and cost, is therefore $18,926.86.
3. Unreimbursed Medical Expenses
According to the judgment, the parties are to share unreimbursed medical expenses. Although the defendant has claimed these expenses, there is insufficient proof that notice has been provided to the defendant pursuant to the terms and conditions of the judgment. Therefore, there is no contempt.
The court notes there was testimony from the defendant that he is current on the payment of the orthodontic expense, but had not been made aware of other, unreimbursed medical expenses. Although the plaintiff provided the court with a summary of unreimbursed expenses, she did not prove she had presented copies of invoices and insurance statements, as required under the judgment. Furthermore, the percentage of unreimbursed medical expenses has been retroactively applied to October 15, 2010, now requiring a different percentage to all outstanding unreimbursed medical expenses incurred since that date. To the extent he has paid for the orthodontic expense above the guideline percentage of 18%, and incurred since October 15, 2010, the defendant shall be credited for any overpayments.
4. Extracurricular Activities
At the hearing on these various motions, the plaintiff claimed a violation of the judgment regarding shared expenses related to extracurricular activities and cultural enhancements. In addition to there being insufficient evidence of the plaintiff's compliance with the terms and conditions of the judgment for the payment of these expenses, the court notes this was not a subject cited in the plaintiff's motions for contempt.
C. Motion to Modify Taxes
There is an additional motion for modification, No. 146, concerning the division of tax deductions for 2010. The court enters no orders concerning the modification of tax deductions at this time.
SO ORDERED