Opinion
No. MMX FA 03 0101617 S
November 29, 2007
At a hearing before this court, the plaintiff Barbara Hughes presented testimony and evidence in support of her Motion to Compel, Motion for Contempt and Motion for Sanctions.
After their divorce in 2004, these parties have filed multiple post-judgment motions. On June 4, 2007, as a result of then pending motions, they entered into an agreement which provided:
1. a. Defendant Father will have parenting time every other weekend, from Friday at 5:00 p.m. until Sunday at 6:00 p.m. Further, the Defendant Father shall have every other Thursday (during the week he does not have weekend visitation) from 5:00 p.m. until 8:00 a.m. the next morning.
b. Pick-ups and drop-offs shall be made within a thirty minute window of the ordered times. The location of said drop-off with transportation by Defendant Father, so long as Plaintiff Mother has a job with Fridays off, shall be at the Plaintiff Mother's residence, curb-side. Otherwise, drop-offs shall occur at school or other mutually agreeable location. Drop-offs to Father shall occur at Defendant Father's and transportation shall be provided by Plaintiff Mother . . .
4. Vacation Parenting Time: Each party is entitled to two weeks of exclusive non-consecutive vacation parenting time. The vacation parenting time takes precedence over the regular parenting time schedule . . .
6. Relocation: The parties are specifically entering into this agreement with the understanding that the issue of the child's primary residence might be litigated or addressed in a different fashion if the potential for future relocation outside of the State of Connecticut or outside a thirty (30) mile radius of their current residences were at issue and believe it is in the best interests of the child to avoid such a determination at this time to defer any such litigation unless and until an actual relocation is proposed . . .
10. Child Support: The Defendant Father shall pay to the Plaintiff Mother the sum of $136 per week prospectively as child support for the minor child, commencing May 25, 2007 . . .
11. Child Care: The parties shall split the expense, 55% to the Plaintiff Mother and 45% to the Defendant Father, of any work-related child care for the minor child. The parties shall both consent as to any provider to be used. The Defendant Father shall pay his portion directly to the provider, if possible, starting in the fall of `07. Until such time, he shall pay to the Plaintiff Mother after confirmation of cost.
14. Health Insurance and Medical Expenses: The minor child is currently covered under the HUSKY program. Both parties shall keep the other apprised of health care coverage available through his or her employer. If said coverage is available for the minor child at a reasonable cost, that party shall provide coverage for the minor child. The parties shall divide all unreimbursed medical and dental expenses, including, but not limited to, surgical, optical, hospital, psychological and prescription drug expenses on behalf of the minor child by currently splitting them 55% for the Plaintiff Mother and 45% for the Defendant Father; beginning with the first dollar of expense in a calendar year. Each party shall pay his or her share of any said expense to the other party within seven (7) days of receiving a copy of the provider's invoice. The party incurring the expense shall submit an invoice within thirty (30) days of incurring the expense. The Defendant Father shall pay $86 in past unreimbursed charges, to be paid to the Plaintiff Mother at $21.50 per week, starting June 8, 2007.
In her present motions, the Plaintiff Mother has alleged that the Defendant Father has failed to pay the child support, medical costs and child care costs pursuant to court order. Motion to Compel, (Motion #132.) She further alleged that the Defendant Father has failed to implement court-ordered wage withholding (Motion to Compel, Motion #132).
The Plaintiff Mother next contends that the Defendant Father failed to reveal his full income at the time of the June 4, 2007 agreement. (Motion for Contempt, Motion #133 dated July 6, 2007.) Additionally, according to the Plaintiff Mother the Defendant Father is consistently late during his parenting time. (Motion for Contempt, Motion #133 dated July 6, 2007.) In her Motion for Contempt the Plaintiff Mother repeats her allegations concerning failure to pay child support, day care expenses and unreimbursed medical expenses.
Finally the Plaintiff Mother alleges that the Defendant Father provided false information concerning his income and living arrangements. As a consequence, she requests the court open and modify the June 4, 2007, court order. (Motion to Open dated July 6, 2007.)
The Plaintiff Mother has been employed at Middletown Press, working an 8-4 shift. The Defendant Father was also employed at the time of this hearing. From the date of the June agreement to the date of the instant hearing, there has not been a substantial change in the income of these individuals. The parents of this child lived approximately 1/4 mile apart at the line of the June agreement. As of the date of the instant hearing, they had not moved.
At the time of the June 2007 modification, this court entered orders that incorporated the parties' agreement concerning custody, visitation, child support and reimbursement for expenses. Since that date, the defendant has been consistently late in his child support payments. His outstanding obligation as of September 4, 2007, was $1,080.00. He has not paid his proper share of day care expenses. This court includes the cost of camp in the day care expenses. The court also accepts the plaintiff's testimony that she must pay for full-time day care each week, whether the child attends or not, in order to maintain the child's place at the facility. The defendant owed the plaintiff $639.90, his share of the day care costs.
The plaintiff alleged that the defendant failed to implement wage withholding. There is no evidence that the delay was caused by any action by the defendant.
Additionally the defendant had paid none of the medical expenses billed since the date of the last order. Those medical expenses include a large hospital bill. Unfortunately, the child was not insured at the time of the treatment. The defendant owed the plaintiff $643.50 for medical expenses. Finally, the defendant failed to pay $86, an amount included in the June agreement for past due medical expenses.
Although the defendant suggests that the plaintiff was negligent insofar as she authorized the treatment before the HUSKY program was available for payment, this court notes the plaintiff acted as promptly as possible. It is also apparent that although coverage was available through his employer, the defendant never secured insurance for this child. He utilized the Veteran's Administration for medical treatment.
At the time of the June agreement, both parents assumed that Dalton had insurance though the state HUSKY program. Neither was aware that eligibility was not automatic upon acceptance in the program. Consequently, there was a period of time during which the child was not insured yet received medical treatment.
The plaintiff mother has been creative in her efforts to secure day care for Dalton. After school, Dalton attended day care at a private program, at the cost of $75 per week. That day care was also used during the summer. Additionally, the plaintiff mother enrolled the child in a summer camp program sponsored by the Middletown Department of Parks and Recreation.
Full-time day care during vacations weeks and summers cost $165 per week. The Middletown summer program cost $312. The defendant failed to provide funds for day care and camp in a timely manner. As a consequence, Dalton could not attend his regular day care program. Unable to secure alternate care, the plaintiff brought the child to her place of employment for an entire week. Eventually the plaintiff used the security deposit from her apartment to pay for summer care.
As of September 4, 2007, the total amount due the plaintiff was $2,449.40. The defendant was aware of the child support and reimbursement obligations. He received copies of the day care, camp and medical bills. He chose to ignore the same.
The court finds that there is no credible evidence that the defendant made additional payments. Additionally, there is no evidence whatsoever that the defendant was available to care for the child on those occasions when the plaintiff utilized day care.
There is uncontested evidence that the defendant is chronically late when he visits with this child. That alone does not support a finding of contempt.
Through her motion to open the June 2007 proceedings, the plaintiff challenges the accuracy and truthfulness of the defendant's representations prior to the entry of the agreement. In particular, she alleges that the defendant worked more than indicated in his financial affidavit and further planned to move from his Middletown condominium in the near future. These falsehoods, according to the plaintiff, affected the ultimate agreement concerning child support and visitation.
The plaintiff alleges that the defendant had an undisclosed part-time job. That employment ended in June.
From the testimony elicited at the September hearing, this court finds that the plaintiff and her counsel were fully aware of the sources of the defendant's income at the time of the June agreement.
The plaintiff and her counsel were also aware of the fact that the defendant planned to eventually move from Middletown, a fact evidenced by the agreement itself and the relocation provisions contained therein. The fact that the defendant is late when he visits the child is not a basis to reopen the judgment. It does not provide evidence sufficient to deny the defendant the agreed-upon overnight visits. The plaintiff presented no reason to alter the existing agreement, and certainly did not present information concerning the best interests of the child in this case.
The plaintiff presented evidence of a real estate listing, but that occurred after the entry of the June judgment.
This court will first address the motion to open/motion to modify. A central concept in American jurisprudence is that all litigation must eventually end. In the present case, the plaintiff attempts to relitigate the June 4, 2007 agreement, charging the defendant committed fraud by withholding information concerning a part-time job and a prospective move.
"The essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." Kilduff v. Adams, Inc., 219 Conn. 314, 329 (1991) (internal quotation omitted; citations omitted); Billington v. Billington, 220 Conn. 212, 217 (1991).
The plaintiff is correct insofar as "[a] court is entitled to rely on the truth and accuracy of sworn statements required by [25-30] of the Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding." Casanova v. Casanova, 166 Conn. 304, 305 (1974). That same obligation extends to counsel for litigants in a dissolution proceeding. Billingion v. Billington, 220 Conn. at 220. However, the plaintiff has failed to establish the essential elements of fraud. The Motion to Open/Motion for Modification is denied.
The plaintiff has also filed essentially identical motions to compel and motions for contempt. Connecticut procedure authorizes motions for contempt, one of the few vehicles available to enforce compliance with court orders. The burden of establishing a prima facie showing of contempt, in this case the willful disobedience of a court order, falls upon the plaintiff. "A finding of contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court . . ." (Citation omitted; internal quotation marks omitted.) Lawrence v. Lawrence, 92 Conn.App. 212, 214 (2005). "The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind. (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).
Turning first to the question of the lack of a wage execution, there is no evidence that the delay in implementation was due to action by the defendant. He cannot be held in contempt for the inactions of third parties.
The plaintiff also presented evidence in support of her allegation that the defendant has failed to pay child support in accordance with the June agreement. As indicated above, the plaintiff has met her burden with respect to these allegations.
At the time of the June agreement, the defendant had agreed to pay $136 per week in accordance with the child support guidelines, plus 45% of the unreimbursed medical and day care expenses, as well as a medical payment arrearage of $86. It is not contested that since the date of the agreement he failed to make regular, timely payments. As of September 4, 2007, the total amount due the plaintiff was $2,449.40.
The defendant failed to comply with that the financial terms of the agreement. The issue remains, did that action constitute contempt. "To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." Lawrence v. Lawrence, 92 Conn.App. 212, 214 (2005).
There is no question that the money is due. Each litigant established a court order and non-compliance. Court orders must be obeyed until modified or successfully challenged Mulholland v. Mulholland, 229 Conn. 643, 649 (1994); Lawrence v. Lawrence, 92 Conn.App. at 215. Examining the facts and evidence presented, it is clear that the defendant substantially ignored this obligation under the agreement. It is also obvious that the decision was based upon economic considerations. There is sufficient evidence of ability of comply. Therefore, with respect to this last issue, the motion for contempt is granted.
The plaintiff has requested attorney fees and costs. She suggests that this court should award costs for not just this hearing, but for the June proceedings as well. Initially, this court will rule that the court will not order attorney fees and costs for past proceedings. It is limited to the matter before the court.
Having examined the affidavit submitted by plaintiff's counsel, this court finds that some of the request for attorney fees and costs are reasonable and appropriate. In particular, the court orders that the defendant pay the plaintiff $1,400 for the attorney fees expended to present the present motion for contempt. Additionally, the defendant is ordered to pay $250 toward the cost of filing fees, service fees and subpoena costs.
In order to remedy his arrearage and fee obligation, the defendant is ordered to pay the plaintiff an additional $75 per week. That additional payment will continue until his obligations are fully met.
So Ordered.