Opinion
FA134012940S
07-03-2017
Ingrid Heymach v. Michael Heymach
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AFTER HEARING ON MOTIONS TO MODIFY ##145 AND 150 AND MOTION FOR CONTEMPT #154
Hon. John D. Moore, J.
A.
INTRODUCTION
The defendant father filed, on September 8, 2016, a postjudgment motion to modify alimony and child support downward (#145). Motion #145 was served, in-hand, on the plaintiff mother on September 16, 2016. On November 1, 2016, the defendant filed a postjudgment motion to modify downward his obligations (1) to pay child support, (2) to maintain health insurance for the children, (3) to pay for two-thirds of the older child's post-secondary educational costs, and (4) to maintain $498,000 of life insurance limits for the benefit of the plaintiff (#150). The motion certified that it was mailed to counsel for the plaintiff on November 1, 2016. The stated basis for motions ##145 and 150 was a substantial change of circumstances, namely that the defendant lost his job in information technology quality assurance at a hedge fund. On February 8, 2017, the plaintiff filed a postjudgment motion for contempt (#154), claiming that the defendant had not paid alimony since October 2016 and did not carry the required amount of life insurance mandated in the judgment of dissolution.
Although not specified in the motion, the defendant asked the court during the hearing to suspend alimony temporarily with a review of alimony within a certain period of time.
The defendant had previously filed a motion to modify alimony downward (#143) on August 5, 2016. Prior to claiming motion #143 for the court's consideration, the defendant filed motion #145. As a result, the court infers that motion #143 has been subsumed into motion #145. Motion #143 was served on the plaintiff mother at her place of abode on August 27, 2016. (Please see return of service #144.)
The court conducted a hearing on motions 145, 150 and 154 on February 8 and March 7, 2017. For the reasons set forth below, the court grants the defendant's motion to modify #145 prospectively, grants in part and denies in part the defendant's motion to modify #150 and grants the plaintiff's motion for contempt #154.
B.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
These motions were heard by the court. When the court hears a motion, " the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony." (Internal quotation marks omitted.) Blasco v. Commercial Linens, LLC, 133 Conn.App. 706, 709, 36 A.3d 737 (2012). The role of the trier of fact is to assess the credibility of the witnesses on the basis of its firsthand observation of the witnesses' conduct, demeanor and attitude. See Cohen v. Roll-A-Cover, LLC, 131 Conn.App. 443, 450, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).
The court had ample opportunity to observe the conduct, demeanor and attitude of the plaintiff and the defendant, to evaluate their testimony, and to relate the testimony of each witness to the exhibits in the case. In considering the evidence, in addition to evaluating the testimony and exhibits, the court also drew reasonable inferences from the facts established in this case. The court took into consideration, as well, direct and circumstantial evidence that was admitted in the course of the trial.
The court evaluated the testimony of both parties, taking into account not only their spoken testimony, but also their ability to perceive the things about which they testified, their ability to recall relevant facts and events, any interest that they may have had in the outcome, the reasonableness of their testimony, and any contradictions that arose between their testimony and other evidence introduced at trial. The court's findings of fact, including its decisions to credit one witness in regard to certain areas of testimony, are based upon all of the foregoing factors.
The parties were married on June 12, 1988. Two children were born as issue of this marriage: Corinne T. Heymach, on June 7, 1996, and Michael J. Heymach, on February 23, 2000.
The parties were divorced on May 16, 2014. Along with a dissolution agreement, executed on May 14, 2014, the judgment also incorporated a post-majority educational support order for the older child, Corinne, pursuant to which the defendant was required to pay two-thirds and the plaintiff one-third of Corinne's college tuition, room, board, fees and dues. To understand the genesis of this order, the court listened to the audiotape of the dissolution proceeding. This court notes that the parties asked the judge who presided over the dissolution, Trombley, J., to determine the parties' split of Corinne's college expenses within an agreed-upon spectrum. The court entertained argument from counsel as to contributions from the defendant that ranged from two-thirds to three-quarters of said college expenses. After considering this argument and all other aspects of the agreement, the court entered a post-majority educational support order requiring the defendant to pay two-thirds of Corinne's college expenses and the plaintiff one-third of said college expenses.
Although the written order mentions only fees, the audiotape of the hearing clearly indicates that Judge Trombley was ordering the two-thirds versus one-third split for tuition, room, board, fees and, if applicable, dues, pursuant to General Statutes § 46b-56c(f).
The dissolution judgment included the following provisions that are pertinent to the pending motions.
Although the parties shared joint legal custody of the two minor children, the plaintiff was to be, and remains, the primary residential parent. The defendant's child support obligation was $286 per week pursuant to the Child Support and Arrearage Guidelines. The child support awarded was for Michael only, as Corinne was approximately three weeks away from her eighteenth birthday, as well as her high school graduation, at the time of the dissolution. The defendant's obligation to pay child support continues until Michael's eighteenth birthday, February 23, 2018, or his graduation from high school, whichever comes first. The defendant also agreed to pay ten per cent of his annual net bonus or commission as additional child support. The defendant agreed to pay $390 weekly in alimony to the plaintiff for twelve years, until either the death of either party, or the remarriage or cohabitation of the plaintiff, pursuant to General Statutes § 46b-86(b). The agreement expressly provided that " alimony shall not extend beyond 12 years of duration and is modifiable as to amount." The defendant was required to maintain health insurance for the benefit of the minor children, " as long as he is able to do so through his employment at a reasonable cost, until each child attains the age of 23 years as long as [the] insurance policy allows it." In the event that the defendant could no longer provide medical insurance for the minors through his employer at a reasonable cost, and if the plaintiff could do so, the plaintiff was required to maintain such health insurance for the minors until each became twenty-three years old. Under those circumstances, the defendant " shall be responsible for the payment of the premiums attributable to the minor children." The judgment mandated that the defendant " maintain his existing two life insurance policies in the amounts of $398,000 and $100,000" and name the plaintiff as an " irrevocable beneficiary so long as Husband has a child support or alimony obligation." If the defendant were to lose the $398,000 life insurance policy placed through his employer, the judgment required him " to replace it promptly with a term life policy for the same amount." The judgment also posited that the defendant " shall provide the [plaintiff] with proof of all life policies as well as make her aware of any subsequent changes and/or policy renewals within seven (7) days."
The court notes that the language concerning the termination of the child support obligation is confusing. Section 2 of the dissolution agreement states that the child support obligation " shall be paid until Michael's eighteenth birthday, or graduation from high school, whichever occurs first, but not beyond his 19th birthday." Since Michael's eighteenth birthday will occur before his nineteenth birthday, the court will employ February 23, 2018, as the end point for child support.
At the time of the dissolution, the defendant's financial affidavit (#132) demonstrated gross weekly wages of $3,403.85 and net weekly wages of $2,020.13, as well as gross weekly income from his annual bonus of an additional $1,173.08, with net weekly bonus income of $730.27. The defendant's total weekly net income from both sources was, therefore, $2,750.40, at the time of dissolution. At that time, the plaintiff's gross weekly income was $1,054.50, and her net weekly income was $850.76 (#131).
The defendant's employer at the time of dissolution was SAC Capital. Post-dissolution, and after a corporate name change, SAC Capital became Point 72 Asset Management, L.P. (collectively, Point 72). At Point 72, the defendant served as a manager in the Quality Assurance section of the Information Technology department. The defendant was terminated by Point 72 on February 3, 2016 through no fault of his own, along with approximately 12 other members of his department. Pursuant to a Separation Agreement and Full Release, executed on March 15, 2016, the defendant received gross severance pay of $90,000.
After his termination, the defendant filed fifty-six applications for employment in the field of information technology with a miscellany of financial and other companies. Although he was invited to ten interviews, the defendant did not receive any job offers. Ultimately, the defendant accepted a job as a commercial first officer with Commutair, a regional airline doing business as United Express. Commutair offered the defendant a job by means of a letter dated August 11, 2016. His employment with Commutair began on October 3, 2016. The defendant's present pay at Commutair is $36,000 annually. On a weekly basis, the defendant's gross pay is $623.08, and his net pay is $504.96. Between the August 11, 2016 offer of employment and the defendant's October 3, 2016 starting date with Commutair, the defendant continued, to no avail, to seek employment in the field of quality assurance in information technology. Therefore, the court finds that the defendant, despite trying conscientiously to find a job in the field of information technology, could not find one prior to beginning work at Commutair.
Because of the vast difference in pay between working in information technology and as a commercial pilot or first officer, a great deal of evidence during the hearing pertained to the defendant's decision to accept the job with Commutair.
Even outside the hedge fund area, testimony at trial revealed that the annual compensation for an information technology employee such as the plaintiff was at or slightly above $100,000.
The defendant testified credibly that a job in the quality assurance section of an information technology department is a vulnerable position. Quality assurance information technology employees are needed when a company rolls out new hardware or software, but are less necessary when the bugs have been worked out of these systems. Often, companies discover that they can outsource these jobs at lower expense internationally. The defendant testified credibly that several of his previous jobs had been terminated because of a reduction in force or because the company for which he worked was acquired or went out of business.
Conversely, the defendant testified credibly that working as a commercial first officer or pilot is a relatively secure position. Detailed background checks must be conducted and satisfied before a person can be hired as a pilot. The defendant, who learned how to fly in the national guard in the early 1990s, passed all of these background checks. The kind of competition that an information technology professional faces from foreign nationals does not exist for airline pilots.
The defendant also testified credibly that Commutair, which operates as United Express, has a business relationship with United Air Lines. If the defendant performs well as a first officer with Commutair, he will have opportunities for advancement into a pilot's position, first with Communtair, and then with United Air Lines. This advancement carries with it the probability of almost doubling his income within a five-year period.
The plaintiff testified credibly that the defendant loves to fly. The plaintiff's counsel argued vigorously that this is the reason that the defendant chose to accept the first officer's job with Commutair. However, given the facts found above, and notwithstanding the substantial cut in pay, the court finds that the defendant's decision to accept the job with Commutair was both rationally based and borne of necessity.
One downside to accepting the Commutair job is that the defendant will no longer be able to provide flight instruction, a side occupation in which the defendant had previously engaged. Federal regulations prohibit pilots from flying more than 100 hours a month and more than 1, 000 hours a year. As a result, the defendant's employment as a first officer with Commutair precludes him from providing flight instruction for compensation, because the flight instruction time would erode the defendant's maximum flying time with his employer.
After the dissolution, but before he lost his job with Point 72, the defendant bought a home with a fair market value of $500,000 and equity of $125,000 in Danbury. The defendant now lives in his new home with his new girlfriend and a baby that the defendant fathered. At the time of the hearing, the baby was approximately three months old. Despite the loss of his job at Point 72, the defendant has not missed a mortgage payment on his new home. Extrapolating from the defendant's most recent financial affidavit, the defendant's monthly mortgage and property tax payments total $2,935.31. The defendant testified that he contemplated putting the new house on the market, but had not done so. The defendant stated that selling his Danbury home would create difficulty for his girlfriend and young baby.
To derive this figure, the court added together the defendant's weekly mortgage and property tax payments, multiplied this sum by 52 and then divided by 12.
The defendant's retirement savings totaled $379,000 at the time of the hearings. The defendant testified that he has not borrowed or withdrawn any money from his retirement savings to date, but was considering doing so, to pay for, among other things, his mortgage payments and certain other expenses of his new family. The defendant has also not yet sold any coins of a collection valued at $35,000 to pay for expenses for either his original or his new family.
The defendant's credit card debt was $19,977.82, and he owed his attorney $6,942. He had $6,346 in bank accounts and drove a car worth about $10,000.
The defendant paid down approximately $30,600 in credit card debt during 2016. Much of this credit card debt, according to the defendant, arose from expenses incurred by his new family.
After the dissolution and in accordance with the judgment, the defendant maintained approximately $500,000 in total life insurance naming the plaintiff as his beneficiary. During the hearing, the defendant testified that, until his termination, he carried a life insurance policy through Point 72 with a $360,000 limit and another policy through a national pilot's association with a limit of $140,000. The defendant lost the larger policy immediately upon being terminated by Point 72 in February 3, 2016. After that time, the defendant never carried enough life insurance to satisfy his obligation under the dissolution judgment. The defendant maintained the $140,000 life insurance policy until October 2016. After that time, the defendant secured a life insurance policy with a $100,000 limit from USAA. In January 2017, the defendant became eligible for life insurance with Commutair and secured a policy with a $150,000 limit through his present employer. At the time of the hearings, therefore, the defendant was carrying life insurance with total limits of $250,000.
The defendant stopped paying alimony on October 17, 2016. The defendant, as of the time of the hearings, had continued to pay child support pursuant to the judgment.
When the defendant lost his Point 72 job, he lost his health insurance. The defendant informed the plaintiff of that fact immediately. Because the plaintiff could access health insurance for the children through her job at a reasonable cost, she was required to do so under the dissolution judgment, and she did so. The difference between the health insurance premiums for the plaintiff alone and those for her and the children was $228.50 a month. The defendant reimbursed the plaintiff the $228.50 a month for the additional health insurance premiums until November 2016. He stopped making such payments at that time. The plaintiff's deductible also doubled from $2,500 a year to $5,000 a year when she added the children to her health insurance plan.
At the time of the hearing, the plaintiff earned $1,096.99 in gross income weekly, as well as weekly child support of $286 for a gross weekly total of $1,382.88. The plaintiff's net weekly income was $1,101.86. The plaintiff had $95,619.74 of equity in her home, $351,055.23 of retirement assets and $30,000 in collectibles. The plaintiff had $10,500 in bank accounts and $2,500 of credit card debt. The plaintiff owned a vehicle valued at $14,800.
As mentioned above, the defendant, citing his loss of employment at Point 72, has moved to modify downward his obligations to pay alimony, child support and two-thirds of Corrine's college tuition, as well as his requirement to maintain health insurance for the two children and life insurance with aggregate limits of $498,000 with the plaintiff as beneficiary. The plaintiff has moved for contempt in regard to the defendant's failure to pay her alimony since October 2016, and his failure to maintain close to $500,000 in life insurance benefits. The court will review each of these claims seriatim, by category.
1. Child Support
Connecticut law is clear as to the manner in which a party may establish a basis upon which the court may modify an order of child support based upon a substantial change in circumstances. Our Appellate Court has, additionally, quite recently, emphasized the prerequisites for deviation from the guidelines in a determination of child support.
" [Section] 46b-86 governs the modification of a child support order after the date of a dissolution judgment . . . Section 46b-86(a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is either (1) a showing of a substantial change in the circumstances of either party, or (2) a showing that the final order for child support substantively deviates from the child support guidelines . . ." (Citation omitted, footnote omitted, internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn.App. 482, 491-92, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). In this case, as mentioned above, the defendant moves to modify child support on the first ground: a substantial change in circumstances evidenced by substantial loss of income after he was terminated from Point 72. " [A] substantial change of circumstances . . . establish[es] the authority of the trial court to modify existing child support orders to respond to changed economic conditions. [Such 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." (Internal quotation marks omitted.) Mullin v. Mullin, 28 Conn.App. 632, 635, 612 A.2d 796 (1992).
When proceeding under a claim of substantial change in circumstances, the movant " bears the burden of showing the existence of a substantial change in the circumstances." (Internal quotation marks omitted.) Santoro v. Santoro, 70 Conn.App. 212, 218-19, 797 A.2d 592 (2002). More specifically, a " party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper." Savage v. Savage, 25 Conn.App. 693, 696, 596 A.2d 23 (1991). " Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . or to allow the parties to use a motion to modify as an appeal . . . Rather, the trial court's discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties." (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994). The court's " inquiry, then, is limited to a comparison between the current conditions and the last court order." (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn.App. 87, 92, 699 A.2d 1029 (1997), superseded on other grounds as recognized by Sagalyn v. Pederson, 140 Conn.App. 792, 60 A.3d 367 (2013).
There is, additionally, a very important presumption that applies to the operation of the child support guidelines. The child support guidelines are intended, by operation of statute, to determine an order of child support unless an exception applies. " [Section] 46b-215b provides that the child support guidelines shall be considered in all determinations of child support amounts." McHugh v. McHugh, 27 Conn.App. 724, 727, 609 A.2d 250 (1992). Section 46b-215b creates a " rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered." (Internal quotation marks omitted.) Id., at 727-28. To rebut this presumption, the court must make a " specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a . . ." Mullin v. Mullin, supra, 28 Conn.App. 636-37. " Unless there is [such] a specific finding on the record that would allow the presumption to be rebutted, child support awarded must be in the amount provided by the guidelines." Savage v. Savage, supra, 25 Conn.App. 698.
The bases for deviation are set forth in Regs., Conn. State Agencies § 46b-215a-5c, " Deviation criteria."
As mentioned earlier, our Appellate Court has, quite recently, put a finer point on the requirement of a specific finding that the guidelines recommendation would be inequitable or inappropriate. In Righi v. Righi, 172 Conn.App. 427, 160 A.3d 1094 (2017), the Appellate Court made it abundantly clear that, before deviating from the guidelines on child support, the trial court must make a specific finding on the record that " applying the guidelines would be inequitable or inappropriate." Id., 438-39. In so holding, the Appellate Court rejected an argument that such a finding was necessarily implied when the trial court found that a deviation from the guidelines, even one supported by a reference to the deviation criteria, was " fair and reasonable." Id., 434-35.
As noted above, the defendant moved to modify his child support obligation downward because of a claimed substantial decrease in income. Under Crowley, supra, in order to decide if the defendant has suffered a substantial change of circumstances, the court must compare the conditions at the present time to the conditions at the time of the last order of child support.
In undertaking that comparison, the court finds that the defendant has endured a substantially negative change in circumstances.
The last order of child support was also the first, the one issued in the dissolution judgment. At that time, as mentioned above, the defendant's total weekly net income from all sources at that time was $2,750.40, and the plaintiff's net weekly income was $850.76. The defendant's presumptive child support obligation for Michael under the guidelines was $286 per week, and that was the amount of child support ordered in the dissolution judgment. Pursuant to financial affidavits submitted at the time of this hearing, the defendant's net pay is $504.96 per week and the plaintiff's net pay was $1,101.86, inclusive of child support. Taking into account the fact that the receipt of child support enhances the plaintiff's gross weekly income by $286, the plaintiff's net weekly income has essentially remained static since the last order of child support, while the defendant's net income is 18.35 percent of what it was at that time. Such a turnabout is, tautologically, a substantial change of circumstances, and not one for the better.
The agreement giving rise to the judgment recited that this amount was " pursuant to the C.S.G., " or child support guidelines. Additionally, Judge Trombley, who presided over the dissolution canvass, also noted that the order of child support was pursuant to the guidelines.
The plaintiff argued strenuously, however, that the defendant was, in a manner of speaking, a willing participant in his own financial downturn. Specifically, the plaintiff contended that the defendant may have lost his previous job for cause and/or that he intentionally diminished his income to take on a job, that of a pilot, that had always been his dream job. The court cannot find that the defendant did so. To succeed in such an argument, the plaintiff must convince the court that the defendant undertook this transaction intentionally to diminish his income in a culpable or inexcusable way. See Sanchione v Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); Olson v. Mohammadu, 310 Conn. 665, 683-84, 81 A.3d 215 (2013) (culpability needed is voluntary action undertaken " in order to avoid. . . financial obligations" [emphasis in original]). Instead, the court finds, for the following reasons, that the defendant's loss of employment with Point 72, his subsequent fruitless job search for an information technology job and his acceptance of a lower paying first officer job were all " excusable and not brought about by the defendant's own fault." Sanchione v Sanchione, supra, 407.
The defendant did not choose to leave Point 72. The defendant was not terminated for cause. He was laid off along with about a dozen or so fellow employees in information technology. The defendant tried mightily to obtain work in the information technology field, sending out fifty-six job applications. While he received ten interviews, he received no job offers. The defendant continued to search for information technology work even after receiving a job offer from Commutair and did not stop looking for a job in his field until he started working at Commutair. Moreover, the defendant was burned several times in the past by the loss of information technology jobs due to reductions in force, or the dissolution or sale of an employer. Taking all those factors together, the defendant's choice to accept a job in a more secure field, one with apparently greater job security and the chance to essentially double his income within five or so years, albeit at a greatly diminished initial income, was reasonable, understandable, excusable and not brought about by his own fault.
The defendant submitted a child support guidelines worksheet taking into account the most recent financial affidavits (#158). The presumptive amount of child support for the defendant under the guidelines is $82 a week. As discussed earlier, our statutes require that the child support guidelines shall determine an order of child support unless an exception applies. " [Section] 46b-215b, in fact, creates a " rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support to be ordered." McHugh v. McHugh, supra, 27 Conn.App. 727-28. The only way that this presumption may be rebutted is for the court to make a " specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a . . ." Mullin v. Mullin, supra, 28 Conn.App. 636-37. " Unless there is [such] a specific finding on the record that would allow the presumption to be rebutted, child support awarded must be in the amount provided by the guidelines." Savage v. Savage, supra, 25 Conn.App. 698.
The bases for deviation are set forth in Regs., Conn. State Agencies § 46b-215a-5c, " Deviation criteria."
No court in this matter has previously made a specific finding on the record that the application of the guidelines would be inequitable or inappropriate pursuant to the deviation criteria. In fact, the court presiding over the dissolution found, on the record, that the order of child support was in compliance with the guidelines. This court has reviewed the deviation criteria found in § 46b-215a-5c of the Regulations of Connecticut State Agencies and cannot conclude that adherence to the child support guidelines would be inequitable or inappropriate under the facts of this case. The court holds, therefore, that the defendant's child support obligation for Michael shall be modified to $82 per week.
The only remaining question for the court is whether the modification of child support should apply retroactively. Section 46b-86(a) give the court " broad and liberal" discretion to order a retroactive modification of the defendant's child support effective back to the date of service of this motion; see Hartney v. Hartney, 83 Conn.App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004); which, in this case, was September 16, 2016. Although the court may consider such factors as the length of time between the date of filing and the date of deciding a motion to modify, and the changes in the parties' incomes and needs during the pendency of the motion; see Zahringer v. Zahringer, 124 Conn.App. 672, 689, 6 A.3d 141 (2010); there is no bright line test requiring the court to reach a certain result on retroactivity. Hane v. Hane, 158 Conn.App. 167, 176, 118 A.3d 685 (2015).
In considering the possible retroactive application of the order modifying child support, the court weighs the following factors.
The following factors argue for retroactive application. The defendant filed the motion requesting, inter alia, a downward modification of child support on September 8, 2016, and served it on the plaintiff on September 16, 2016. A hearing on this motion was postponed twice by motions for a continuance filed by the plaintiff. Moreover, the defendant, acting in apparent good faith, continued to pay child support at least through March 7, 2017, the date of the last hearing.
Other factors, however, militate against retroactive application of this order modifying child support. Even though the defendant continued to pay child support through at least March 7, 2017, the defendant, as discussed in greater detail below, unilaterally suspended his alimony payments on October 17, 2016, and has not been compliant with his obligations: (1) to maintain the required life insurance policy limits since February 3, 2016, and (2) to reimburse the plaintiff for the childrens' portion of her medical insurance premium since early November 2016. Additionally, the plaintiff testified credibly that the defendant failed to respond expeditiously when she informed him that their daughter needed to pay an overdue college food service bill before she could register for school in August 2016. As a result, the plaintiff was forced to pay the defendant's two-thirds portion of that bill. It is axiomatic that the financial " issues [in a family case] are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 386, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006). While it may be commendable that the defendant continued to pay child support through the date of the last hearing, and that he moved to modify alimony prior to his decision to stop paying it, the defendant, during the same time period, unilaterally decided to disregard his court-ordered duties concerning several other, interwoven areas of financial obligation as posited under the judgment: (1) the maintenance of the appropriate levels of life insurance, (2) the reimbursement of health insurance premiums for the childrens' coverage, and (3) payment on time of his portion of Corinne's overdue college food expenses. Moreover, the defendant, during the same time period, never missed a mortgage payment for his new home, $2,935.31 monthly, including property tax, paid down just over $30,000 of his own credit card debt in 2016 and never accessed other available assets, such as his coin collection or his retirement assets (against which he could have taken a loan), to satisfy his duties to pay alimony, to maintain the ordered levels of life insurance, to reimburse the plaintiff for health insurance premiums for the childrens' coverage or to pay all college expenses on time.
For all of these factors, the court will not exercise its " broad and liberal" discretion to order a retroactive downward modification of the defendant's child support obligation. Instead, the downward modification of the defendant's child support order to $82 per week shall be effective on the date on which this memorandum of decision is issued.
2. Alimony
a. Defendant's Motion to Modify
The defendant also asks the court to suspend his alimony obligation due to a substantial change in circumstances with a review of this suspension in one year's time.
The dissolution judgment required the defendant to pay $390 a week in alimony. The judgment further required that the defendant pay the plaintiff alimony for twelve years. While the twelve-year term was not modifiable, the amount of alimony was modifiable if there were a substantial change in circumstances.
Periodic alimony and rehabilitative alimony may be modified " upon a showing of substantial change in the circumstances of either party." The alimony order may be continued, set aside, altered or modified; additionally, payments may be suspended. See Grosso v. Grosso, 59 Conn.App. 628, 635-36, 758 A.2d 367, cert. denied, 254 Conn. 938, 761 A.2d 761 (2000).
As with child support, the change in circumstances must have occurred since the most recent proceeding on the issue. Borkowski v. Borkowski, 228 Conn. 729, 735-36, 638 A.2d 1060 (1994). Once the court finds a substantial change in circumstances, it must consider the statutory criteria in General Statutes § 46b-82 in determining whether a modification is warranted. However, " its inquiry is necessarily confined to a comparison between the current conditions and the last court order. To permit the trial court to reconsider all evidence dating from before the original divorce proceedings, in determining the adjustment of alimony, would be, in effect, to undermine the policy behind the well established rule of limiting proof of the substantial change of circumstances to events occurring subsequent to the latest alimony order-the avoidance of relitigating matters already settled." Id., 738. See also Simms v. Simms, 283 Conn. 494, 505, 927 A.2d 894 (2007) (court may consider assets of the parties in determining the amount of modification, even if those assets were part of the original distribution of property).
As held above, the defendant has experienced a substantially negative change in his financial circumstances. The defendant's net weekly income is 18.35 percent of what it was at the time that the alimony order entered, in the dissolution judgment.
The court next proceeds to consider the statutory factors for alimony set forth in General Statutes § 46b-82. The factors are (1) the length of the marriage; Loughlin v. Loughlin, 280 Conn. 632, 644-45, 910 A.2d 963 (2006); (2) the cause of the breakdown; (3) the age of the parties; (4) the health of the parties; Tevolini v. Tevolini, 66 Conn.App. 16, 27-28, 783 A.2d 1157 (2001); (5) the parties' station in life; (6) the parties' occupation; (7) the amount and sources of income for each party; (8) earning capacity of each party; (9) the parties' vocational skills; (10) the parties' education; (11) the parties' employability; (12) the estate and needs of the parties; Zahringer v. Zahringer, 262 Conn. 360, 364, 815 A.2d 75 (2003) (payor's income had greatly increased); Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005) (lottery winnings voluntarily shared prior to dissolution raised standard of living for both parties); (13) the division of property; and (14) custody arrangements, and the desirability of the custodial parent's securing employment. The court must consider all the statutory factors in making an award of alimony, but need not give each factor equal weight. Costa v. Costa, 57 Conn.App. 165, 174, 752 A.2d 1106 (2000).
The court, in considering the statutory factors, notes the following. The marriage lasted almost sixteen years. The parties both appear to be in decent health. The defendant's station in life has taken a downward turn. Even though serving as a commercial first officer is certainly an esteemed profession, he has suffered, as reviewed above, a substantial loss of income. The defendant also has a very young daughter from another relationship, three months old at the time of the hearing. The plaintiff's income, as discussed above, is virtually stagnant. The court reasonably infers that she has plateaued in her chosen job of serving as a real estate property manager. The property division at the time of dissolution was beneficial to the plaintiff. Despite the fact that the defendant brought, by far, the most significant portion of income into the marital estate, the plaintiff received substantial assets from the dissolution, including significant amounts of the defendant's retirement plan assets, equity arising from the marital home and a portion of the defendant's coin collection. The plaintiff's most recent financial affidavit evidenced that she maintains over $381,000 in assets from equity in her home, retirement accounts and collectible coins. The defendant, however, was not stripped of all his assets by means of the dissolution judgment. Although he still carries almost $20,000 of credit card debt, the defendant's most recent financial affidavit also demonstrated over $379,000 in retirement assets and $35,000 worth of collectible coins. The plaintiff has, by far, more custodial parenting time than does the defendant. Even though the children are older, parenting children of their ages demands not only time, but energy and strategy.
Taking into account all of these factors, the court holds that the defendant should still pay alimony. Because of the substantial change in his financial circumstances, the court will modify the defendant's alimony obligation downward. Since the defendant now makes about 18.35% of what he made, on a net basis, when the parties were divorced, the court orders that the defendant pay the plaintiff .1835 (18.35 percent) times $390, or $72 a week for alimony. The original motion to modify alimony, #143, was served on the plaintiff on August 27, 2016. As with child support, the court has the option of making the modification of alimony retroactive to that date. For the reasons set forth above in the section on child support, the court will not exercise its discretion to do so. Rather, the court orders that the modification of alimony shall be effective upon the issuance of this memorandum of decision. Moreover, the court orders a hearing scheduled one year from the release of this memorandum of decision to evaluate whether the defendant has increased his income and whether the amount of alimony should be increased.
b. The Plaintiff's Motion for Contempt
As mentioned above, the plaintiff has moved for a finding of contempt based upon the fact that the defendant stopped paying alimony on October 17, 2016 (#150). The plaintiff asks the court to find contempt, to order the payment of all outstanding alimony and to order attorneys fees and costs related to the filing of the contempt motion.
The party seeking a finding of contempt must prove a willful violation of a clear court order. " 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." (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998); Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). A person may not be held in contempt of an order of which that person could not have been aware. Calway v. Calway, 26 Conn.App. 737, 747, 603 A.2d 434 (1992).
The court must find that the defendant violated the order by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). " This heightened standard of proof adequately characterizes the level of certainty appropriate to justify civil contempt sanctions, especially when those sanctions may include incarceration . . . Moreover, within our state's existing legal framework for indirect civil contempt proceedings, a clear and convincing standard of proof is consistent with the threshold substantive requirement that the directives of the underlying court order be 'clear and unambiguous.' . . . Our rigorous due process requirements for indirect civil contempt proceedings likewise demand a heightened evidentiary standard . . . In sum, a civil contempt finding should not attach to an individual just because it is more likely than not that an injunction was disobeyed beyond the eyes of a court." (Citations omitted; internal quotation marks omitted.) Id., 319.
" Noncompliance alone will not support a judgment of contempt." (Internal quotation marked omitted.) Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). " [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995); see also Niles v. Niles, 9 Conn.App. 240, 253-54, 518 A.2d 932 (1986) (sufficient factual basis to explain plaintiff's failure to obey order); Meehan v. Meehan, 40 Conn.App. 107, 111-12, 669 A.2d 616 (1996) (court was within discretion to not find wife in contempt for removing children from family home when she was afraid for their safety due to father's conduct).
" 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." Eldridge v. Eldridge, supra, 244 Conn. 523 (finding of contempt upheld, even though plaintiff was correct that he had overpaid under terms of judgment); see also Jenks v. Jenks, 39 Conn.App. 139, 142-43, 663 A.2d 1123 (1995) (plaintiff willing to make up payments he did not understand he was liable for, and should not have been found in contempt).
Ambiguity is a factor for the trial court to consider when making a finding of wilfulness, but does not require such a finding. Sablosky v. Sablosky, 258 Conn. 713, 720-21, 784 A.2d 890 (2001). " There may be circumstances in which an ambiguity in an order may preclude a finding of contempt . . . when there is an adequate factual basis to explain the failure to honor the court's order." (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn.App. 771, 777, 804 A.2d 889 (2002).
" The inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt." Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974); see also Tatro v. Tatro, 24 Conn.App. 180, 186, 587 A.2d 154 (1991) (plaintiff was unable to obtain the physical custody of the child as ordered by the court). The respondent must have the opportunity " to demonstrate that his failure to comply with the order of the trial court was excusable." Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994).
The burden is on the alleged contemnor to prove inability to comply. Perry v. Perry, 222 Conn. 799, 805, 611 A.2d 400 (1992), overruled on other grounds by Bryant v. Bryant, supra, 228 Conn. 636; Leslie v. Leslie, 174 Conn. 399, 403, 389 A.2d 747 (1978).
During the hearing, the defendant frankly admitted that he simply stopped paying alimony to the plaintiff on October 17, 2016 because he could not afford to do so. It was on or just before this time that the defendant's severance payment from Point 72 had been spent. The defendant's argument was, therefore, that he was unable to comply with the judgment requirement to pay alimony because he was financially unable to do so. The court is not persuaded.
As noted above, the defendant had not, to the date of the hearings, missed a mortgage payment on his new house. Although he had $125,000 of equity in his new house, the defendant had not put the house on the market through the last hearing date, March 7, 2017. The defendant indicated that he may have to do so, but had not done so as of that date. There was no evidence that the defendant sought to refinance his new house to access his equity in it. The defendant testified that he had not sold any coins from his collection, valued at $35,000. The defendant also admitted that he had not taken a loan against his retirement funds. The defendant had, however, paid off over $30,000 in credit card debt in 2016. If the defendant had chosen to access any of these sources of income to pay his alimony, he could have done so. The court finds that the defendant wilfully chose not to do so, while choosing to place other obligations, e.g., credit card debt, and the expenses of his new family, in front of his court-ordered obligation to pay alimony.
The court finds that the plaintiff has proven a willful violation of a clear court order by clear and convincing evidence. The defendant has not proven that he was unable to comply. Therefore, the court finds the defendant in contempt of a court order by failing to pay his alimony after October 17, 2016.
The court has great discretion in fashioning a remedy. " The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders." Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982). In this case, there are several factors that the court must consider in crafting a remedy for the defendants' willful failure to pay alimony after October 17, 2017.
First, the court must consider the impact of requiring the defendant to be fully responsible for all alimony owed. The defendant has failed to pay alimony for thirty-seven weeks. Multiplying thirty-seven weeks times $390 per week, through June 26, 2017, yields a product of $14,430. This is the full amount that the defendant would have to pay for all the missing alimony. Given the present financial circumstances of the defendant, however, this would be an onerous amount to repay over a short period of time. The court does not wish to enter an order with which, for all intents and purposes, it may be impossible for the defendant to comply.
The court is also aware, as set forth in footnote 13, infra, that the plaintiff may be seeking, in the near future, additional sums due for unpaid medical expenses from the defendant.
Second, the court must bear in mind that the defendant attempted to have the court hear his motion to modify alimony downward much earlier. The original show cause hearing for motion #145, the motion to modify alimony, was scheduled for October 11, 2017, six days before the defendant stopped paying alimony. Motion #145 was continued twice by the plaintiff, and was not heard, as stated above, until February 8 and March 7, 2017. Additionally, the court has now reduced the alimony payment on a prospective basis to $72 a week. If the court had ordered a downward modification at an earlier date, the amount of arrearage would have been far less substantial than the full amount of alimony owed now.
A third factor, however, counters, to some degree, the second factor. The defendant was certainly aware of the continuances and, yet, intentionally and unilaterally, continued not to pay alimony after October 17, 2016. While this risk may have been a calculated one, it was, nonetheless, a risk. Being represented by highly competent counsel, the defendant certainly understood that the court had the option to apply the reduced alimony figure retroactively, but was under no obligation to do so.
Taking all of these factors into account, the court orders that the defendant's contempt on the failure to pay alimony may be purged upon a payment of $5,300, to be paid on the following basis: $500 on or before July 28, 2017, $500 on or before August 25, 2017 and the remainder of the arrearage, $4,300, by weekly payments of $50 a week beginning on September 5, 2017 until the arrearage is paid in full.
This amount represents the approximate product when one doubles the reduced weekly alimony of $72, and then multiplies that amount times the 37 weeks, to date, for which alimony has not been paid.
3. Life Insurance
a. Defendant's Motion to Modify
The defendant has moved to modify his obligation to maintain life insurance policy limits in the amount of $498,000. As mentioned above, he presently maintains life insurance limits of $250,000.
General Statutes § 46b-86(a) provides, in relevant part: " Unless and to the extent that the decree precludes modification, any final order . . . requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be . . . modified by the court upon a showing of substantial change in the circumstances of either party."
The defendant, as mentioned above, has endured a substantially negative change in circumstances when he lost his job at Point 72. As of February 3, 2017, he lost his company-sponsored life insurance policy with limits of $360,000. The court finds that this change of circumstances supports a downward obligation of the defendant's obligation to provide life insurance from $498,000. The court modifies this portion of the judgment of dissolution to a requirement that the defendant maintain $250,000 of life insurance with the plaintiff as the irrevocable beneficiary for as long as the defendant has an obligation to pay either child support or alimony. The $250,000 is more than sufficient to perform its stated purpose under the dissolution judgment, namely to provide security on the amounts owed by the defendant to the plaintiff for his remaining alimony and child support payments, as modified by this memorandum of decision, as well as the arrearage on the alimony as a result of the defendant's contempt.
The court notes that even were the court not to have modified the original amounts of alimony and child support, $250,000 would be sufficient to securitize the amount of alimony that remains unpaid and the entire child support obligation. The judgment required the defendant to pay $390 per week for twelve years, for a total over time of $243,360. The defendant paid the full amount of alimony for 126 weeks, for a total payment of $49,140. The defendant, if the full amount of alimony were to have remained in effect for the twelve-year period, would owe $194,220. The entire amount of child support through February 28, 2018 would be $286 times 197 weeks, or $56,342.
b. Plaintiff's Motion for Contempt
The plaintiff moved for contempt based upon the defendant's failure to maintain the requisite $498,000 of life insurance limits. The court will not restate the legal analysis involved in a postjudgment contempt matter but simply incorporates that analysis from section 2.b.
The defendant made no attempt to procure life insurance in the amount required by the judgment after he lost his $360,000 policy. The court finds that the plaintiff has proven that the defendant wilfully violated the clear court order to maintain $498,000 of life insurance limits by clear and convincing evidence. As a result, the court finds the defendant to be in contempt of the portion of the judgment requiring him to maintain $498,000 of life insurance for the benefit of the plaintiff to secure the defendant's obligations to pay alimony and child support. However, no damage resulted from the defendant's failure to obey this portion of the judgment. Because he did not die during the time period after he lost the Point 72-sponsored life insurance policy, there was no need to access the life insurance proceeds. Therefore, the court will not order a remedy for this contempt, with one exception.
Because the court found the defendant in contempt on both his failure to pay alimony and his failure to maintain the life insurance limits as set forth in the judgment, the court will entertain an application for attorneys fees to be filed by the plaintiff's attorney, solely in regard to the filing of and legal work related to the motion for contempt, supported by an affidavit. If the plaintiff's counsel wishes to file such an application and affidavit, they must be filed on or before 5:00 p.m. on July 14, 2017.
4. Health Insurance
Without any detailed explanation, the defendant cited to his substantial change in circumstances, e.g., losing his job at Point 72, and the health insurance that went along with it, and asked that his obligation to provide health insurance " be modified." The defendant's attorney did not point to any authority allowing the court to do so. The court has discretion " to adapt the order to [a] distinct and definite change in the circumstances or conditions of the parties." Borkowski v. Borkowski, supra, 228 Conn. 738. However, the judgment itself provided for a contingency under just the circumstances that have occurred in this case, there is no need for the court to modify that portion of the judgment pertaining to health insurance for the children. Therefore, the court denies this portion of the defendant's motion to modify the judgment.
Pursuant to General Statutes § 46b-84(f)(2), a support order issued at the time of a marriage dissolution " shall include . . . a provision for the health care coverage of the child who is subject to the provisions of . . . this section." The judgment in this case provided that the defendant would provide such health coverage for both children until each child was twenty-three as long as the insurance policy allowed him to do so and " as long as he is able to do so through his employment at a reasonable cost." If the defendant could no longer do so, and if the plaintiff had health insurance benefits available to her at a reasonable cost, then the plaintiff would provide health insurance to the children until each turned twenty-three. Under those circumstances, the defendant was obligated to pay the portion of the health insurance premium attributable to the children.
When the defendant lost his job at Point 72, he lost his health insurance there. He immediately called the plaintiff, who placed the children on her employer's health insurance plan. The portion of the plaintiff's increased health insurance premium allocable to the children was $228.50 per month. The plaintiff's deductible also increased from $2,500 per year to $5,000 per year. The defendant reimbursed the plaintiff the $228.50 per month until November 2016. After that, he ceased to do so. The defendant presently has health insurance available to him through Commutair. Testimony taken during the hearing convinces the court that it is more cost-effective for the parties for the plaintiff to maintain the children on the plaintiff's health insurance plan and for the defendant to reimburse the plaintiff $228.50 per month for the childrens' portion of the premium and to pay any costs arising from the enhanced deductible. The court further orders the defendant to pay, on a go-forward basis, the medical insurance premium attributable to the children, as well as any expenses arising from the increase in the deductible from $2,500 to $5,000 yearly. The court additionally orders the plaintiff to notify the defendant if the premium allocable to the children either increases or decreases within two weeks of such change by providing notice to his attorney.
Counsel for the plaintiff told the court during the second day of the hearing that the plaintiff intended to pursue the defendant for past due medical costs. The court is not sure whether this arises from the failure to pay the enhanced medical insurance premium difference since November 2016 or from unreimbursed medical expenses, or both. The court informed the plaintiff's attorney that the plaintiff would need to file such a claim in writing in a motion before the court could consider it.
5. College Expenses
The defendant also asks the court to decrease his share of college expenses for Corinne from two-thirds to one-half, based upon his diminished income. As mentioned above, Judge Trombley, at the time of dissolution, decided that the defendant should pay two-thirds, and the plaintiff one-third of Corinne's room, board, tuition, costs and fees. In so doing, Judge Trombley cited, during the hearing, and as memorialized on the court's audio recording system, that he did so based upon the mosaic of the financial orders entered in the case. Judge Trombley also commented on the record that the parties were both going to be relatively financially well off after the dissolution.
An education support order may be modified in the same manner as any other support order could be. See General Statutes § 46b-56c(h). Therefore, the court may consider a substantial change in circumstances as the basis for modifying a post-majority educational support order.
Corinne only has one more year of undergraduate studies left. Corinne also has received substantial scholarships each year she has attended college. Although the total cost of her college was about $50,000 per year, the parents' portion ranged from approximately $20,000 to approximately $24,000 per year. Two-thirds of these expenses would, therefore, range from $13,333.32 to $16,000, and one-half of these expenses would range from $10,000 to $12,000. Given that (1) only one more year of college remains, (2) the difference between two-thirds and one-half of the college expenses runs from $3333.32 to $4000, (3) the defendant has retained substantial assets that could be accessed to make these payments, and (4) the court has significantly reduced the amount of alimony and child support that the plaintiff will receive prospectively, the court declines to adjust the defendant's college expense responsibilities.
CONCLUSION
The court is aware that the defendant may not be able to satisfy the financial orders contained in this memorandum of decision from his current income stream. However, as mentioned above, the defendant has substantial assets from which to draw upon to discharge these time-limited obligations. The defendant freely chose to purchase an expensive new home and begin a new family when he had significant weekly earnings and bonus income from Point 72. The defendant freely chose to use his large chunks of his severance pay for the benefit of paying down credit card debt incurred on behalf of his new family and to pay the substantial mortgage and tax payments at this new home. Although the defendant's loss of his job at Point 72 constituted a substantial change in circumstances that caused the court to modify his prospective alimony and child support payments, the defendant retains responsibilities toward his original family. The court's orders reflect all of these insights. The court's orders also demonstrate an awareness that the defendant has available assets from which to satisfy the responsibilities he owes to this original family.
SO ORDERED.