Opinion
No. FA 88-0506570-S
March 30, 2005
MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR CONTEMPT, P.J. (# 119) DEFENDANT'S MOTION FOR CONTEMPT, P.J. (#125)
The marriage of the parties was dissolved on February 2, 1989. The judgment provided that the defendant would pay the sum of $150 per week in child support on behalf of the parties' one minor child, Shannon, born August 31, 1986. Also provided for in the judgment was the conveyance of the marital home by the defendant to the plaintiff with the plaintiff executing a mortgage in favor of the defendant in the amount of $17,600 at "five (5%) percent interest payable on the earliest of the following occurrences: the parties' youngest child attaining the age of 18, the wife's remarriage, the wife's cohabitation with an unrelated adult male, the sale of [the marital home], the wife's death, or her voluntary relocation from the [marital home]."
On November 6, 1990, the defendant filed a motion for modification by citation for a modification of the child support payment due to the defendant's unemployment, asking that the child support order be "modified to $35.00 per week until such time as defendant obtains employment at which time support order will return to $150.00 per week." (Motion for modification by citation, #112). On December 10, 1990, the parties reached an agreement and a stipulation was entered by the court stating "Parties agree that starting this week that father defendant's child support will be reduced to $60 per week. Upon re-employment he has 7 days to notify ex-wife. Support will increase as does defendant's income. Until defendant's support level reaches that which he paid at the dissolution of the marriage. A note from the wife to husband will be reduced the amount of arrears $1,360 — from $17,600 to $16,240." (Austin, J.) (Motion to modify judgment order, #112). The order was hand written by the court. A typed order was entered on the original judgment and was transcribed as follows:
"December 10, 1990: The within judgment is modified so that the order for child support shall be $60.00 a week. The defendant shall notify the plaintiff within seven days of his re-employment. Child support will increase as does the defendant's income until support reaches $150.00 a week. The mortgage in favor of the defendant shall be reduced by $1,360.00 from $17,600.00 to $16,240.00." (Judgment dated February 2, 1989). Both parties agree to the following facts: The defendant paid the plaintiff child support in the amount of $60 until January 24, 1991. He then paid $70 per week in child support until July 22, 1991, at which time he decreased the child support to $60 per week. Then on October 13, 1992, he increased the child support payment to $94 per week, which he paid for twelve years until August 31, 2004, when Shannon reached eighteen.
Both parties also agree that the defendant was not consistent with his payments, sometimes not paying for a period of time, and then making a lump sum payment. The defendant explains that this was due to his employment as a commissioned sales person. At the time of the hearing, child support was current based upon the $94 per week payment.
On August 12, 2004, the plaintiff filed a motion for contempt, postjudgment, alleging that "support should automatically increase to original support level [in accordance with State of Connecticut Child Support Guidelines] upon Defendant's reemployment." (Motion #119). She further alleges that the defendant consistently refused to provide any information or documentation regarding his income or "to increase his support in accordance with either Child Support Guidelines or with Judge Austin's modification order of December 10, 1990." Apparently in anticipation of the note and mortgage becoming due on August 31, 2004, the plaintiff asks that any arrearage found owing by the defendant be set off against any amounts otherwise owing to the defendant from the plaintiff.
The motion for contempt contains the bracketed phrase, however, neither the handwritten order by the court nor the transcribed order makes reference to the Connecticut Child Support Guidelines.
The defendant filed an objection to the motion for contempt raising the defenses of equitable estoppel, laches and waiver. He also filed a motion for contempt, in that the judgment provided for the payment of the note upon the first of numerous conditions, one of which occurred, namely, the minor child, Shannon, turning eighteen years of age. He alleges that she has willfully and maliciously failed to make the payment to the defendant in the amount of $16,240, along with 5% interest per annum.
The court will first address the plaintiff's motion for contempt.
"Contempt proceedings are a proper means of enforcing a court order of child support. Unlawful failure to pay court-ordered child support as it becomes due constitutes indirect civil contempt." (Citations omitted.) Mulholland v. Mulholland, 31 Conn.App. 214, 220, 624 A.2d 379 (1993). "In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 772 A.2d 681 (2001) "Although it has not been settled by our Supreme Court as to whether the burden of proof on a contempt motion in a family matter is proof by clear and convincing evidence or by a fair preponderance of the evidence, the burden is upon the movant." Velez v. D'Alessandro, Superior Court, judicial district of Tolland, FA 91-0947807S (September 9, 2002). See, Cologne v. Westfarms Associates, 197 Conn. 141, 152, fn. 11, 496 A.2 476 (1985); Issler v. Issler, 50 Conn.App. 58, 66, 716 A.2d 938, cert. granted in part, 247 Conn. 921, 722 A.2d 810, reversed, 250 Conn. 226, 737 A.2d 383 (1998).
The plaintiff argues both parties understood that the defendant first had an obligation to report any increases in his income to the plaintiff, and second, to increase his child support to a level representing 24 percent of his net income until his child support payment reached $150, the original child support payment ordered under the dissolution judgment. She indicates that this understanding is evidenced by a note given by the defendant to the plaintiff concerning changes in his income in July 1991. In the note, the defendant wrote,
"Enclosed is a check for $88. $60 is for this week instead of $70 due to my new job only pays a couple hundred dollars till commissions rise above that amount. When they do I'll be sending you 24% of that number — Hopefully that will not be too long. The $28 is for Shannon's bill." (Plaintiff's Exh. 1)
The plaintiff contends she repeatedly requested from the defendant proof of his income, however, the only evidence of this contention provided to the court was a letter dated April 7, 1992, in which she stated that the December 10, 1990, modification required him to verify his income for the year 1991. "This information should include W-2 forms from each job you held, verification of unemployment compensation and rental income, etc., along with pay stubs verifying acceptable deductions, to justify a continued amount of $60 per week. At the same time, a copy of your most recent pay check is requested to verify that the above amount is still valid." (Plaintiff's Exh. 4). The defendant believes he showed her a W-2 in the early 1990s, but has no clear recollection.
First, the court does not find that the defendant had any affirmative duty to furnish proof of his income to the plaintiff. There was no order of the court which provided for him on a regular basis, or on any basis, to verify his income in any given year. Second, there is no indication anywhere that the original child support order or the subsequent modification was tied in any way to the Child Support Guidelines. Third, there is no indication that the child support figure was tied to a percentage of his gross income, net income, a part of his commissions, etc. The original child support order was $150. His gross income per his financial affidavit filed the same day as the judgment was $992.57 and his net income was $751.03. Twenty-four percent of the net income would have been $180, however, the initial order for child support was $150.
In attempting to determine where the 24 percent figure may have come from, the court examined the court file and found the defendant's financial affidavit filed at the time of the modification which showed a net income from unemployment compensation of $252. Twenty-four percent of that figure would be $60.48.
In examining the note which the defendant sent to the plaintiff the court does not find any evidence which would assist the court in determining the intent of the parties. There is a reference to the figure of twenty-four percent, however, it does not indicate what the twenty-four percent is to be used against. Is it gross income? Net income? The commission amount which is the amount above the "couple hundred" dollars? The plaintiff provided the court with a chart (which was not admitted into evidence) reflecting for each year, the gross yearly earning per the tax returns, the gross weekly earnings per the tax returns, support paid, and a figure which allegedly represents 24 percent of "net income."
The court only received into evidence W-2 or 1099 statements for the years 1992, 1993, 1995, and 2000. (Plaintiff's Exhibits 8, 9, 11, and 12), and the court only received a Schedule C to a tax return for the year 1998. (Plaintiff's Exh. 11). The court also received a social security statement which indicated the defendant's gross taxed social security earnings from 1974 through 2002. The problem facing the court with all these figures is that the gross earnings shown on the chart provided to the court does not match up to any of the exhibits entered as evidence.
To make matters more difficult, our case law is well settled that a court must base child support on the available net income of the parties, not gross income. See, Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979); Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974); Evans v. Taylor, 67 Conn.App. 108, 111, 786 A.2d 525 (2001); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001). The plaintiff provided this schedule to the court, not as an exhibit, and it contained a footnote that indicated the net income figure was arrived at by taking 85 percent of the gross income per the tax returns and social security reporting statements. There was no evidence to indicate that this was a correct percentage for tax deductions for the state and federal tax rates in effect from time to time, there was no evidence of tax rates, nor was there any request for the court to take judicial notice of state and federal tax laws.
The court was furnished with evidence through W-2 statements alone of the defendant's income in 1993 and 2000. In 1993, the net income could be calculated at $21,643.88, deducting the federal income tax, social security tax, and medicare tax from the gross wages. (Plaintiff's Exh. 10). Under the same calculation, the net income for the year 2000 was $51,009.88.
In Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998), the Supreme/Court reiterated the general proposition that "court orders must be complied with until they are modified by a court or successfully challenged." (Internal quotation marks omitted.) ". . . [W]here there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help." Sablosky v. Sablosky, 258 Conn. 713, 720, 784 A.2d 890 (2001).
The citiation history of this case is Sablosky v. Sablosky, 61 Conn.App. 66, 762 A.2d 922 (2000), rev'd, 258 Conn. 713, 784 A.2d 890 (2001), on remand, 72 Conn.App. 408, 805 A.2d 745 (2002).
It would be fair to infer that when the defendant's income reached the same level which he had at the time of the divorce (net income of $751 per week), he should have been paying $150, but there is no way to determine what his obligation would be if his net income is less that $751 when the court is not provided `with credible, reliable figures of his net income. Therefore, in 2000, when his net weekly income was $980, it is reasonable to conclude that he should have been paying $150 in child support. If he believed his obligation was something other than that figure, he was required to seek a clarification rather than determine his child support obligation by resorting to self-help. When his net income was less than the $751, he was obligated to pay some other amount of child support, but this court cannot determine that amount both because of the ambiguity of the court order and the plaintiff's failure to establish the defendant's net income.
While the court order of December 10, 1990, makes no reference to the child support guidelines, the provisions of the guidelines would have been in effect in 1990. See, Favrow v. Vargas, 222 Conn. 699, 610 A.2d 1267 (1992). The Child Support Guidelines, of course, require a calculation based upon the net incomes of both parents. The plaintiff offered no proof of her gross or net income for any of these years in question. Her current gross income is $82,929 per year and $1,594 per week, and her net weekly income is currently $1,216.51.
The defendant argues that the plaintiff's claims are barred by the defenses of laches and equitable estoppel.
"Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief in equity." Traggis v. Shawmut Bank Connecticut, NA., 72 Conn.App. 251, 262, 805 A.2d 105 (2002). "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Internal quotations marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 486 n. 21, 717 A.2d 1177 (1998); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955).
"The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question . . . Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979).
The plaintiff cites Burrier v. Burrier, 59 Conn.App. 595, 758 A.2d 373 (2000) as her authority that the doctrine of laches has not been held to apply to an action to collect past due child support in Connecticut. In Burrier, the defendant who was raising the defense of laches did not offer any evidence to prove he was prejudiced by the delay of the plaintiff in filing a motion for contempt for his failure to pay child support. The court found the defendant had failed to carry his evidentiary burden on the second element of laches. The plaintiff also cites Arnold v. Arnold, 35 Conn.Sup. 244, 407 A.2d 190 (1979), where the defendant did not make his support payments, and the plaintiff filed a motion for contempt twenty-two years later, after the minor child reached her majority.
The court summarily found the defenses of laches and equitable estoppel were not available to the defendant but did not set forth a factual basis for its finding. Id., 246. The plaintiff offered no reasons why she did not pursue the motion for contempt earlier. However, the court does not find that her failure to pursue the action earlier resulted in any prejudice to the defendant in such a way that the delay became inequitable to him. The court declines to find the matter is barred by laches.
Unfortunately, the plaintiff's delay in bringing this contempt actually worked to her disadvantage because it was difficult, if not impossible, to sufficiently prove the defendant's net income for many of the years cited.
The test to determine whether a party should be equitably estopped from raising a claim is well established. "The doctrine of equitable estoppel prevents a party from asserting a legal claim because it would be unfair or inequitable to allow him to do so." Colvin v. Perkins, Superior Court, judicial district of New Haven, Docket No. FA 89 290355 (May 13, 1996, Alander, J.) ( 18 Conn. L. Rptr. 104). "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Bozzi v. Bozzi, supra, 177 Conn. 241.
"Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Citation omitted; internal quotation marks omitted.) W. v. W., 256 Conn. 657, 661, 779 A.2d 716 (2001).
Under our well-established law, any claim of estoppel is predicated on proof of "two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Union Carbide Corp. v. Danbury, 257 Conn. 865, 873, 778 A.2d 204 (2001). "An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party . . . the party claiming estoppel has the burden of proof . . ." (Citations omitted.) Herbert S. Newman Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 768, 674 A.2d 1313 (1996). "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995); Sablosky v. Sablosky, supra, CT Page 5651 72 Conn.App. 414-15.
The defendant believed that he was paying the correct amount of child support. Had he known that the plaintiff would be "lying in wait" until the time when the note and mortgage became due to offset any arrearage which she owed to him, he could have sought a modification of any orders of child support. Those orders would have been subject to the Child Support Guidelines which would have taken into account his income as well as the plaintiff's income. However, the court does find the plaintiff neither said nor did anything that he relied upon to his detriment. He, too, could have sought a clarification of the court orders if he was unclear as to what amount of child support he was to pay. The court does not find the plaintiff to be barred by the defense of equitable estoppel.
"In order to constitute contempt, a party's conduct must be willful . . . 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 . . . 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 willful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of willfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within a trial court's discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, 258 Conn. 718.
Here the plaintiff has not met her burden of proof as to her claim that the defendant is in contempt of the court's order, even applying the lesser standard of a fair preponderance of the evidence. First, the court is unable to make a finding as to how the child support was to be calculated. Based upon a reading of the December 10, 1990, stipulation, it is clear that when the defendant's income increases, his child support increases. What is not clear is the mechanism to determine the ratio for the increases in child support. The court does, however, find that when the defendant's net income reached or exceeded the level he had at the time of the dissolution, he was required to pay the amount of $150 in child support. The first year that the court can find his net income to have reached that amount was in 2000. He should have paid the sum of $150 in child support from January 2000 until August 31, 2004. The court calculates this arrearage amount to be $13,552.
In addressing the defendant's motion for contempt, the plaintiff was under the misguided belief that she could seek an arrearage from the defendant and thereby offset it by the amount she owed to the defendant under the note and the mortgage. When asked by the court whether she in fact did that, her reply was "what would be wrong with that?" The court cannot find that she willfully meant to act in contempt of a court order but that she had a legitimate misunderstanding of the terms. The court denies the defendant's motion for contempt.
An issue which still remains is whether the note called for simple interest or accrued interest on the outstanding balance. The judgment was silent on the issue, however, the note executed by the plaintiff after the December 10, 1990, modification stated that she promised to pay the sum of $16,240 "with interest at Five percent (5.00%) per annum." (Defendant's Exh. A). In reviewing the file, the court examined the notes taken by the clerk on the day of the dissolution, which state that the "Groton property will go to the plaintiff wife for a $17,600 note at 5% simple interest . . ." The court finds that it was the intent of the parties that the money to be paid by the plaintiff to the defendant would be repaid at the rate of 5 percent simple interest. Therefore, the plaintiff owes to the defendant the sum of $27,756.74.
Applying the arrearage owed by the defendant to the amount owed by the plaintiff to the defendant, the plaintiff owes to the defendant the sum of $14,204.74. Said amount shall be paid in sixty (60) days.
The court declines to award counsel fees to either party.
Swienton, J.