Opinion
No. FA02-0078339S
December 1, 2010
MEMORANDUM OF DECISION
RE Plaintiff's Motion for Contempt #142, Defendant's Motions for Contempt #131, 133, and 141, Plaintiff's Motion for Counsel Fees #135, Plaintiff's Motion for Modification re Tax Exemption #136, Plaintiff's Motion to Modify Child Support #137
The parties appeared with counsel for hearing on the above-captioned post-judgment on six days between January and August of this year. The plaintiff claims that the defendant has not paid his full share of child care expenses, seeks an increase in child support, and asks that the dependency exemption be assigned to her, while the defendant claims that the plaintiff has violated orders regarding his visitation with the minor child. Both parties testified on these issues and submitted various exhibits, and the following people also testified: Marcia Van Buskirk, Dean Vaillancourt, and Jean Hillery, human relations representatives from, respectively, Southern Auto Auction, DSP Output, and Specialty Pool Products, businesses where the plaintiff once worked, and Susan Ironfield, the defendant's mother. Following closing argument, the court requested additional briefing, submitted by the parties in early September. For the reasons stated below, the plaintiff's motion for contempt #142, her motion to modify child support #137, and the defendant's motions for contempt #133 and #141 are granted; and the remaining motions are denied.
I BACKGROUND
The marriage of the parties was dissolved in an uncontested hearing before the Honorable Bethany Alvord on September 12, 2002, at which time both parties represented themselves and the State of Connecticut, which had an interest in the proceeding due to assistance provided the family, appeared through an assistant attorney general. The handwritten separation agreement incorporated into the judgment of dissolution provided that the plaintiff would have sole legal custody of the parties' minor child, Jacob Neill Kissell (Jake), born on July 26, 2000, and the defendant would have reasonable rights of visitation. Child support of $100 per week was ordered in accordance with the child support guidelines. The separation agreement also contained a handwritten annotation "50/50 daycare," and a transcript of the dissolution hearing entered into evidence in the present proceeding shows that the court's specific order was that "[p]arties are to split 50-50 any day care costs in order for the custodial parent to work." Transcript, September 12, 2002, at 14.
II PLAINTIFF'S MOTION FOR CONTEMPT #142
The plaintiff's motion for contempt claims that the defendant owes her "a daycare arrearage in excess of $10,000" for daycare provided to Jake between October 2002 and August 2009. At the beginning of the hearing before this court, she introduced into evidence a spreadsheet stating that daycare had cost $35,086 during this period, that she had paid $31,811, that the defendant had paid $3,882.50, and that the defendant owed an arrearage of $13,660.50. In March, she submitted a revised spreadsheet into evidence that reduced these amounts to $27,741 paid for daycare, $23,081.50 by her and $4,657.50 by him, and an arrearage owed by the defendant of $8,213. In May of this year, after receiving documentation of certain payments that the defendant had made, she again revised her claim to him owing $8,688. Although admitting that he has not always paid for daycare, the defendant disputed the amounts claimed by the plaintiff and said that he had paid more than $6,000 toward daycare in the relevant time period.
Both the plaintiff and defendant introduced into evidence copies of daycare bills, receipts, and checks, and the court has carefully examined those exhibits. They show that the plaintiff paid almost $27,000 for daycare for Jake at various daycare facilities between 2002 and the present. (This amount does not include any daycare provided after May 2009.) Although she initially testified here that all the daycare had been for the purpose of enabling her to work, on cross examination she admitted that she had been unable to work for medical reasons during several of the periods when Jake had been in daycare; and the evidence showed that $18,326 was incurred for daycare during times she was actually working. In addition, she spent $2,010 for summer camps in 2008, when she was working, and $2,670 for summer camps in 2009, when she was not working. For each of those summers, the plaintiff is seeking reimbursement from the defendant for half of $1,850, which is the amount that she would have paid each summer if she had placed Jake in normal daycare instead of sending him to camp.
The plaintiff had the burden of proof in her motion to show what daycare costs she had incurred and she offered oral testimony and copies of daycare bills in support of her claims, which she summarized on the two spreadsheets that were introduced into evidence. There were certain conflicts, however, between her testimony and the documentary evidence. For example, she testified that she spent $7,140 on daycare at the Work and Play School between September 2004 and September 2005; but exhibit six showed that daycare there cost $7,630 during that period; and she testified that Jake was in daycare at the Work and Play School in February through June 2006, but the daycare records contained in exhibit six show do not show any costs incurred at that provider for approximately a month in February and March 2006 but do contain records of daycare expenditures at the East Windsor Family Resource Center between February and June that the plaintiff did not mention in her testimony or record on her spreadsheets. In addition, her testimony and the spreadsheets do not distinguish between costs incurred while working and not working. Although most of the daycare bills contain records of weekly costs and payments, the documentary exhibits do not cover the entire time the evidence showed that she was working. For example, Jake was attending daycare at the Work and Play School in August 2006 while she was working at Southern Auto Auction, but the statements from Work and Play School contained in plaintiff's exhibit 6 do not cover that month. She incurred at least $100 in daycare charges between July 28 and August 29, since a statement dated July 28, 2006, showed a balance then due of $690 and a statement dated October 6, 2006 showed a balance of $790 due on August 29, 2006; and she probably incurred more than that, since the invoices in June and July totaled either $120 per week or $150 per week. The court's determinations of the amounts that the evidence proved the plaintiff had incurred and expended on daycare during periods she was working involved assessing a combination of all the types of evidence offered on this subject.
Daycare in 2002 and 2003
The defendant paid $1,250 for Jake to attend daycare at Robin's Early Bird from October through December 2002 and $1,909 for him to attend daycare at the Hartford Regional YMCA from January through March of 2003, and she testified that she received nothing from the defendant toward his share of these costs. The defendant, on the other hand, claimed that he regularly made cash payments to her for daycare in 2002 and paid for his share of daycare in 2003 by written checks he gave to her. Unlike his other payments for daycare, the defendant has no documentary proof of his claimed contributions in these two years, but he explained that he kept his cancelled checks for only five years and that his bank had been unable to retrieve its records of his checks for 2003. He introduced a letter into evidence from Rockville Savings Bank confirming the latter testimony.
The defendant's brief mistakenly asserts that he paid by check both in late 2002 and in 2003, but he testified that he paid for his share of Jake's daycare at Robins' Early Bird from October through December 2002 in cash directly to the plaintiff.
In view of the plaintiffs varying claims on how much the defendant owed her for daycare, — she claimed in May 2009 that his daycare arrearage was "approximately $31,000," in October 2009 that the arrearage was "in excess of $10,000," in January 2010 that the arrearage was $13,661, and in March 2010 that the arrearage was $9,213, her testimony as to what he owes and what payments he has made is not completely credible. For the period from October 2002 through March 2003, however, that is not particularly surprising, since it has been almost seven years since Jake was in daycare then.
The defendant has claimed the defense of laches, moreover, for this period. "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." Emerick v. Emerick, 28 Conn.App. 794, 803-04, 613 A.2d 1351 (1992). "The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . ." Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979). In this case, there was a significant delay by the plaintiff in claiming that the defendant had not met his daycare obligation for 2002 and 2003. For 2002, however, the defendant has not shown any prejudice from this delay. For this time period, the court has only the live testimony of each party to consider, and in view of the passage of time and the proven reasons to doubt the accuracy of the plaintiff's recollection on these issues, the court finds the evidence in equipoise as to whether he paid or still owes his daycare contribution for that time period, and the plaintiff thus fails in sustaining her burden of proof.
There is no doubt, however, that the plaintiff's delay in bringing her claim for contempt has prejudiced the defendant with respect to his ability to defend against her claim that he owed an arrearage owed for daycare in January through March of 2003, since both the bank and he destroyed their records of any check payments he made to her then. Her delay in presenting her claim for an arrearage during this time period is also inexcusable. She could easily have included a demand for payment on any arrearage the defendant owed for this time period in the letter she had the police deliver to the defendant in August 2005, but that letter made no mention of any arrearage for 2002 or 2003, and instead only mentioned an arrearage in daycare for that year. For the year 2003, the plaintiffs' laches bars her claim.
B Daycare after 2003
Although the plaintiff's motion claims that the judgment ordered the defendant "to pay one-half of day care expenses incurred on behalf of the child," the actual court order was for him to pay 50 percent of "day care costs in order for the custodial parent to work," a requirement that is consistent with the Child Support Guidelines. Regulations, Connecticut State Agencies, § 46b-215a-2a(h). The plaintiff acknowledges this requirement, but argues that the medical treatment she received during the periods she was unemployed was necessary for her to be able to work and has analogized this case to daycare being provided to children during the day so that a custodial parent who worked at night could sleep, as in Zellner v. Zellner, docket number 119115, Superior Court, judicial district of New London at Norwich (August 23, 2000, Corradino, J.) [ 27 Conn. L. Rptr. 720], in which the court stated:
Section 46b-215a-2a(h) of the 2005 Child Support Guidelines, captioned "Determining the child care contribution," provides as follows: "(1) . . . the noncustodial parent shall be ordered to pay the custodial parent a child care contribution as part of each child support award . . . Such contribution shall be for the purpose of reimbursing the custodial parent for a portion of the child care costs incurred on behalf of the subject child . . . (2) . . . (A) Qualifying Costs. Child care costs shall qualify for a contribution from the noncustodial parent only to the extent that they: (i) are reasonable, (ii) are necessary to allow a parent to maintain employment, (iii) are not otherwise reimbursed, and (iv) do not exceed the level required to provide quality care from a licensed source." The 1999 Child Support Guidelines, in effect when the marriage of the parties was dissolved in 2002, provided similarly in § 46b-215a-2a(h), Regulations, Conn. State Agencies, (now repealed).
The court believes the guidelines should not be interpreted to only provide for child care contribution for hours that the custodial parent is actually working. They should be flexibly interpreted in a practical and humanistic sense which as the regulations provide, would recognize that for the custodial parent to work, in some situations, it may be "necessary" that child care costs be incurred for periods of time outside the actual work hours of the custodial parent.
The plaintiff here testified credibly that she has numerous medical ailments that have prevented her from being able to work at various times, and she claimed that she needed help caring for Jake because of them. She testified that her mother helped her take care of Jake during the evenings but during the days, when her mother works, the plaintiff said she took Jake to daycare because she could not care for him by herself. This daycare was thus not so directly or causally linked to her being able to work, as was the case in Zellner.
The child support guidelines do provide a deviation from the presumptive support order for "special circumstances not otherwise addressed" in the guidelines "in which deviation may be warranted for reasons of equity" and include "other equitable factors" as one of those reasons. Regulations, Connecticut State Agencies, Section 46b-215a-3a(6)(D). The court need not decide, however, whether the plaintiff's situation would warrant invoking that provision because the evidence was insufficient to establish that, even if unable to work, the plaintiff had also been unable to care for the parties' son. She originally testified that she had worked during all these periods, and it is unlikely that she would have forgotten that much of the daycare had been because she was unable to care for her son. The latter testimony appeared more as an afterthought once it had been proven that she had not been employed the entire time. Nor did she offer expert testimony or introduce medical records showing that her ailments were so debilitating that she was unable to care for her child. Under these circumstances, the court does not find that it would be inequitable not to deviate from the guidelines or that any deviation criterion is applicable.
The court thus concludes that the plaintiff's claim for contempt lies only for periods when she was actually working. From July 2004 through May 2005, she worked at DST Output and incurred $6,130 in daycare costs during this period. The defendant's half share was $3,065, but he actually paid $4,050, resulting in a credit of $985 applicable to later daycare. From February through August 2006 the plaintiff worked at Southern Auto Auction and incurred $2,932 in daycare costs during this period. The defendant's half share was $1,466, of which all but $481 had already been paid by virtue of his overpayment for daycare while the plaintiff was at DST Output. From April 2007 through the end of April 2009, the plaintiff worked at Specialty Pool, and she paid $9,164 for daycare during this period. The defendant's half share of these costs was $4,582, but he paid only $607.50 (during March through May of 2009, which did represent his required contribution to the plaintiff's daycare expenses during that period). In 2008, Jake also attended summer camps, which cost slightly more than traditional daycare would have, and the court finds the plaintiff's request for half of $1,850 for that summer to be reasonable and consistent with the child support guidelines. See Child Support Guidelines § 46a-215a-2b(h)(2). ("Child care costs shall qualify for a contribution from the noncustodial parent only to the extent that they: (i) are reasonable, (ii) are necessary to allow a parent to maintain employment . . . and (iv) do not exceed the level required to provide quality care from a licensed source."(Emphasis added.) Thus, his total daycare arrearage is as follows:
Owed for daycare in 2006 while plaintiff worked at Southern Auto Auction $481.00
Owed for daycare while plaintiff worked at Specialty Pool $3,974.50
Owed toward cost of 2008 summer camps $925.00
Total Arrearage $ 5,380.50
Both the plaintiff and defendant testified that Mr. Kissell has been paying $25 a week toward his daycare arrearage since December 8, 2009, and that plaintiff's exhibit 12, defendant's exhibit 8 and defendant's exhibit 27 showed that, through May 6, 2010, those payments totaled $550. These payments reduced his arrearage to $4,830.50 as of May 6, 2010.
The evidence therefore establishes that the defendant has failed to comply with the court order that he pay one-half of the daycare provided for Jake so that the plaintiff could work. Noncompliance with that court order, however, does not mandate a finding of contempt. Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). "The fact that the order had not been complied with fully, however, does not dictate that a finding of contempt must enter. 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." Id. A court must also find the party's conduct was willful. CT Page 22713 Kennedy v. Kennedy, 88 Conn.App. 442, 443-44 (2005).
Although the defendant was current on his daycare obligation until part way through the period that the plaintiff was working at Southern Auto Auction in 2006, he has offered no lawful excuse or justification for not making his required contribution for daycare since then while Jake attended daycare so that the plaintiff could work. Although he said he did not know that Jake attended one daycare center (Hazardville Daycare), he made no such claim about not knowing that Jake had been in daycare at the Work and Play School, the East Windsor Family Resource Center or the summer camps Jake attended in 2008. The court finds that his noncompliance with the court order as shown by the evidence to be willful, and he is found to be in contempt.
The plaintiff has requested that the defendant be ordered to pay the arrearage immediately upon penalty of incarceration. The evidence does not show the defendant to have the means of making full payment immediately, however, and an order of incarceration is appropriate only when a contemnor is willfully disobeying a court order with which he is able to comply. "An order of confinement upon an adjudication of civil contempt must provide the contemnor with the key to his release in terms which are not impossible for him to satisfy." Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984). Instead, the court will order payment on the arrearage at the rate of $50 per week, by way of a wage garnishment pursuant to General Statutes Section 52-362(b). Until such time as the wage garnishment goes into effect, the defendant shall make such payments directly to the plaintiff.
General Statutes Section 52-362(b) provides in relevant part as follows: "The Superior Court and any family support magistrate shall issue an order for withholding pursuant to this section against the income of an obligor to enforce a support order when the support order is entered or modified or when the obligor is before the court in an enforcement proceeding. The court shall order the withholding to be effective immediately or may, for cause or pursuant to an agreement by the parties, order a contingent withholding to be effective only on accrual of a delinquency in an amount greater than or equal to thirty days' obligation."
In a contempt proceeding, "a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Plan Zoning Commission, 260 Conn. 232, 243, 796 A.2d 1164 (2002). Under the parties' written separation agreement incorporated into the judgment of dissolution, the defendant was entitled "to get [the dependency] tax exemption if child support is up to date." As shown here, however, since mid-2007, the defendant has not been current in the childcare component of his child support obligation, but, at least in 2007 and 2008, he claimed the dependency tax exemption for Jake without being entitled to because of that arrearage. Under the judgment, moreover, he cannot claim the dependency exemption for 2010 or following years unless he is current on all his child support by year's end. To make the plaintiff whole here, the court orders that, irrespective of its determination of plaintiff's motion #136 and in addition to plaintiff's right under the judgment to claim the tax exemption in this or any future year in which the defendant is not current in child support, she shall be entitled, as a remedy for defendant's contempt here, to claim the dependency tax exemption for as many years as defendant has wrongfully claimed it.
The plaintiff has requested statutory interest pursuant to General Statutes § 37-3a. An allowance of interest is at the discretion of the trial court, as is the rate of interest allowed. Mihalyak v. Mihalyak, 30 Conn.App. 516, 620 A.2d 1327 (1993). The plaintiff's testimony here about where Jake attended daycare, for what periods, and how much she paid each provider was contradicted in many respects by the documentary evidence she submitted. She repeatedly told the defendant that under the judgment he owed for daycare for periods when she was not working. The contempt hearing proved necessary to ferret out that the plaintiff had not been working for many of the periods when she claimed to have been. The contempt hearing was also a vehicle for determining that the plaintiff's original claim to have incurred daycare expenses from July 2003 to July 2004 was either invalid or unprovable. Under these circumstances, the court will exercise its discretion not to award statutory interest.
General Statutes § 37-3a(a) provides, in pertinent part, as follows: "[I]nterest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable."
Under General Statutes § 46b-87, the prevailing party in a contempt proceeding may be awarded a reasonable attorneys fee. "The award of attorneys fees in contempt proceedings is within the discretion of the trial court." Tatro v. Tatro, 24 Conn.App. 180, 189, 587 A.2d 154 (1991). In Champagne v. Champagne, 43 Conn.App. 844, 685 A.2d 1153 (1996), for example, the court upheld the trial court's refusal to award counsel fees for successfully defending against a motion for contempt because "the defendant raised a valid issue in his motion." Id., 850. In this case, the court will exercise that discretion not to award counsel fees for the same reasons it has declined to award statutory interest. The defendant raised successful defenses to many aspects of the plaintiff's claim for contempt, and the contempt hearing was necessary to determine the validity of many of her claims.
General Statutes Section 46b-87 provides in relevant part as follows: "When any person is found in contempt of an order of the Superior Court entered under Section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person."
III PLAINTIFF'S MOTION TO MODIFY CHILD SUPPORT #137
The plaintiff's motion for modification is governed by General Statutes § 46b-86(a), which provides that child support orders may be modified "upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to Section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial." Under our law, "[t]he party seeking modification bears the burden of showing the existence of a substantial change in the circumstances." (Citation omitted; internal quotation marks omitted.) Fish v. Igoe, 83 Conn.App. 398, 406, 849 A.2d 910, cert. denied, 271 Conn. 921, 859 A.2d 577 (2004).
The plaintiff's motion here raises issues both as to the actual income and earning capacity of the parties and whether to apply an upwards deviation from the child support guidelines presumptive amount. The evidence shows that currently the defendant has weekly income of $966 gross and $785 net after taxes and health insurance. The plaintiff was not working at the time of the hearing before this court and was collecting unemployment compensation benefits in the amount of $401 gross and $371 net per week, amounts that exceed minimum wage levels. The presumptive support amount under the child support guidelines, based on the parties' actual current income, is for the defendant to pay child support in the amount of $168 per week plus 53% of qualifying child care expense and unreimbursed medical expenses.
The defendant, however, asks the court to determine child support based on the plaintiff's earning capacity, which he claims to be greater than her unemployment benefits. He argues that the court should impute an earning capacity to her of $750 per week gross, or $19 per hour, the amount that she was earning when she left employment at Specialty Pool in 2009 because of medical reasons. The human relations manager there testified, however, that the company had no openings and her former position had been eliminated. The evidence showed that the plaintiff held jobs between 2004 and 2006 paying between $500 to $600 per week. When questioned on the first hearing date in January about her job search, the plaintiff testified that she had not yet applied for any jobs, had been unable to find any prospective employers "within my salary range," and checked online job vacancies at the unemployment office once a month. She has been medically cleared to resume working two months earlier, in November 2009, and it is not unreasonable for someone out of work to look, at least initially, for work paying the most recent level of compensation. When questioned again about her job status in May, the plaintiff testified that she was still receiving unemployment benefits, but was taking an online job training course. Her claim that it has been hard to find work at her last desired salary level is plausible. The court has no evidentiary basis to find a specific earning capacity greater than her current benefit level or to find that she has not engaged in reasonable job search efforts.
The plaintiff seeks an upward deviation from the presumptive amount because the defendant exercises little or no visitation with Jake. She argues that the defendant's lack of contact with his son has required her "to incur considerably greater expenses than contemplated under the guidelines"; pl.'s brief, at 7; for a custodial parent whose child has a normal visitation schedule with the other parent. The court is not aware of any authority, however, that allows a court to consider less frequent than normal visitation as a deviation criterion. The child support guidelines expressly allow a deviation for visitation substantially more than the normal schedule, but not for the converse.
The child support guidelines commission has described as the "normal visitation schedule" for a noncustodial parent as "typically consist[ing] of two overnights on alternate weekends; alternate holidays; some vacation time; and other visits of short duration, which may occasion an overnight stay during the week." Child Support and Arrearage Guidelines (2005), preamble § (j)(4), p. xiii.
Section 46b-215a-3(b), Regulations, Connecticut State Agencies, captioned "Deviation criteria," provides, in relevant part, as follows:
(6) Special circumstances.
In some cases, there may be special circumstances not otherwise addressed in this section in which deviation from presumptive support amounts may be warranted for reasons of equity. Such circumstances are limited to the following:
(A) Shared physical custody.
When a shared physical custody arrangement exists, deviation is warranted only when:
(i) such arrangement substantially reduces the custodial parent's, or substantially increases the noncustodial parent's, expenses for the child; and
(ii) sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation.
The premise of the Connecticut Child Support Guidelines is that a "child should receive the same proportion of parental income as he or she would have received if the parents lived together." Child Support and Arrearage Guidelines (2005), preamble, § (d), p. iii. The guidelines derive from what the child support guidelines commission described as "authoritative" economic studies providing "reliable estimates of the average amount of household expenditures on children in intact households." Id. Adjusting those estimates "for Connecticut's relatively high income distribution . . . the guidelines allow for the calculation of current support based on each parent's share of the amount estimated to be spent on a child if the parents and child live in an intact household. The amount calculated for the custodial parent is retained by the custodial parent and presumed spent on the child. The amount calculated for the noncustodial parent establishes the level of current support to be ordered by the court. These two amounts together constitute the current support obligation of both parents for the support of the child." Id.
The plaintiff's request that the defendant be ordered to pay more than the presumptive amount is tantamount to claiming that this particular child has needs greater than those found in the families providing the data for the economic studies on which the guidelines are based. The guidelines expressly permit a deviation for certain "extraordinary expenses for care and maintenance of the child," but only (i) where "extraordinary," existing "on a substantial and continuing basis," and (ii) for education expenses, unreimbursable medical needs, and expenses for special needs. Section 46b-215a-3(b)(2), Regulations, Connecticut State Agencies. The present case presents none of those. Under current law, "these three listed criteria, and no others, may warrant deviation under the category `extraordinary expenses for care and maintenance of the child.' There may be other extraordinary expenses for care and maintenance of the child, but unless such expenses can be characterized fairly as falling under one of the three specific listed criteria, they should not be found to warrant a deviation from presumptive support amounts." Child Support and Arrearage Guidelines (2005), preamble, § (j)(2), p. xii. The court thus concludes that it lacks authority to order such a deviation here.
Section 46b-215a-3(b), Regulations, Connecticut State Agencies, captioned "Extraordinary expenses for care and maintenance of the child," provides as follows:
In some cases, a parent may be incurring extraordinary expenses that are essential for the proper care and maintenance of the child whose support is being determined. Only the following expenses, when found to be extraordinary and to exist on a substantial and continuing basis, may justify a deviation from presumptive support amounts under this subdivision:
(A) education expenses,
(B) unreimbursable medical expenses, and
(C) expenses for special needs.
Under General Statutes § 46b-86(a), a final order for support may be modified retroactively if served in accordance with General Statutes 52-50 by a marshal or other proper officer. The certification by plaintiff's counsel on this motion stated that it was mailed to defendant's counsel, rather than served in conformity with § 52-50. The modification is therefore effective on the date of this order.
General Statutes § 46b-86 provides, in relevant part, that "(a) No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of any alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to Section 52-50."
General Statutes § 46b-50 provides, in relevant part as follows: "(a) All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process "to any proper officer" shall be sufficient to direct the process to a state marshal, constable or other proper officer. (b) Process shall not be directed to an indifferent person unless more defendants than one are named in the process and are described to reside in different counties in the state, or unless, in case of a writ of attachment . . ."
IV PLAINTIFF'S MOTION FOR MODIFICATION RE TAX EXEMPTION
The plaintiff seeks to modify the order contained in the judgment of dissolution that the defendant may claim the dependency tax exemption in years he is current in child support. A thoughtful opinion by Judge Cutsumpsus in Ciolino v. Ciolino, Superior Court, judicial district of Waterbury, Docket No. FA 98 0147294 (January 12, 2005) ( 38 Conn. L. Rptr. 525) notes the division in the superior court and the lack of definitive appellate authority on whether such orders may be modified. In this court's view, however, they may not, without consent of the parties.
Judgments in civil matters are final and may not be modified except under limited circumstances. Under General Statutes § 52-212a and Practice Book § 17-4, a motion to open or modify may be filed within four months but thereafter judgments may be opened or modified only if was procured by fraud, mistake, duress, or as "otherwise provided by law . . ." Kim v. Magnotta, 249 Conn. 94, 733 A.2d 809 (1999). This rule of law is the reason that property orders in family matters are nonmodifiable, but that non-modifiability also applies to all orders contained in a family, or any civil, judgment unless there is specific authority permitting modification. General Statutes § 46b-86 allows modification of periodic alimony or support orders, but makes no mention of tax exemptions. There is no ambiguity or uncertainty in the language of the judgment here. For these reasons, the court concludes that there is no legal authority permitting the court to grant the plaintiff's motion, which is thus denied.
General Statutes Section 52-212a provides in relevant part as follows: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . ."
Practice Book Section 17-4, captioned "SETTING ASIDE OR OPENING JUDGMENTS," provides, in relevant part, as follows: "(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
V DEFENDANT'S MOTIONS FOR CONTEMPT #131, 133, AND 141
The defendant's motions for contempt claim that the plaintiff has repeatedly violated the court orders for visitation, but the evidence shows a more complex situation. The judgment did not provide a specific access schedule for the defendant but merely provided that he would have "reasonable visitation." In April 2004, the defendant filed a motion for modification asking for a "set visitation" schedule, and on June 28, 2004, the court, Graziani, J., approved a written agreement by the parties providing that the defendant would have visitation every other weekend from Friday at 5:30 p.m. to Sunday at 5:30 p.m., and an afternoon or evening visit of at least two hours "during the off week." On March 30, 2009, the order was again modified by written agreement of the parties to provide that the defendant would have telephone calls with Jake on Mondays and Tuesdays at 7 p.m., and three six-hour visits on two weekends in April and the first weekend of May. That order specifically provided that "[d]efendant/father shall be present during all visitation time." On May 18, 2009, the order was modified by agreement again for visitation on alternating weekends from 9 a.m. on Saturday to 7 p.m. on Sunday. It also provided that the defendant would have "access to minor child Tuesday, May 19, 2009, from 3:00 p.m.-6:00 p.m . . . Defendant shall thereafter have mid-week (Tues., Wed., Thurs.) access as aforesaid provided parties email to each other father's work schedule for the coming week." Finally, it ordered a midweek telephone call with Jake and no longer contained the requirement that the defendant be present for the entire visitation.
In the first 18 months after the divorce, the defendant saw Jake only sporadically. The plaintiff testified that the defendant saw Jake only a few times after the April 2004 order and did not adhere to the schedule for alternating weekend access. The defendant said, however, that he followed the alternating weekend schedule until October 2005, when he admitted that his visitation again became sporadic. He claimed that one of the reasons was because he often did not know where the plaintiff was living or have her home telephone number. He said that even when he did have her phone number he was often unable to reach her because her voice mailbox was full or he would leave a message but she would not call back. He testified that when he filed the first of these motions for contempt in March 2009 he had not seen Jake for seven or eight months and did not know where the plaintiff was then living or her home phone number, but admitted that he did have her work telephone number. He claimed that he had called her three times to see Jake but that she told him he needed to go to counseling before he could take Jake again.
After the visitation order on March 31, 2009, he saw Jake twice in April, as provided in that order. He testified that, because he was working until 1 p.m., he sent his mother to pick Jake up at noon for the scheduled May visit, but the plaintiff was not home and did not respond to his phone calls. He testified that after the May 18 order the plaintiff would not cooperate on scheduling the midweek visit but instead gave him an ultimata as to the day and time for the visit. He also claimed that when he called Jake he would hear the plaintiff in the background interfering with his phone call.
After the visitation order on May 18, 2009, the defendant had visitation on numerous weekends but also missed several of his scheduled visits. On Father's Day weekend in June, the defendant testified that the plaintiff called his home numerous times on Sunday morning; he said that Jake then started crying and saying that he wanted to go home, and as a result he took Jake back to his mother. On a subsequent weekend in June, he sent his mother to pick Jake up, but, when Jake started crying, the plaintiff did not let Jake leave. On the last weekend of July, neither the defendant nor his mother arrived to pick Jake up for the scheduled visit. When Jake told the plaintiff that he had wanted to see his father, she then took Jake to the defendant's job to see him there. The defendant told her that he would not be able to take Jake at the scheduled time because of work; Jake then talked to his father for a few minutes, but that was the last time they have seen each other. The defendant's last phone call with Jake was in June or July of 2009. The defendant admitted that he had not seen or initiated contact with Jake since then. The plaintiff said that she has asked him numerous times to resume visitation, and his own mother also testified that the plaintiff has spoken to her on several occasions pleading with her to help get the defendant to start visiting with Jake again. She said that when she talks to her son, the defendant says that he is not going to pursue the visitation because he cannot stand the fighting with the plaintiff.
A. Motion for Contempt #131
The defendant's motion for contempt #131 claims that the plaintiff "does not allow [him] any access to the minor child whatsoever[,] . . . does not return Defendant's phone calls requesting visitation or . . . telephone communication with the minor child[, and] . . . refuses to provide [him] with the current physical residence of the child." Although the parties offered conflicting evidence as to the reasons that the defendant has not regularly visited with Jake, the better and more persuasive evidence shows that the fault lies with both parties. It is probably true that, as the defendant testified, the plaintiff has moved frequently and does not always provide him with her home telephone number. But the court also finds that the defendant has been sporadic and inconsistent in his efforts to see Jake from mid-2005 until he filed the pending motions. There were some issues with the plaintiff's compliance with the orders entered in 2009 that the court will address below, but the defendant has not exercised visitation for many months at the time of these hearings, also in violation of the court's orders. Under these circumstances, the court does not find plaintiff in contempt as to motion #131, but in view of the conflicting evidence and mutual fault of the parties no counsel fees are ordered.
B. Motion for Contempt #133
Motion for Contempt #133 complains specifically about the missed visit on May 2, 2009. The plaintiff was not at home at the time that day when the defendant's visitation was scheduled to begin by Jake being picked up at his house, and for that she is in contempt of court. The court order had provided, however, that the defendant himself was to be present for all visitation, and the defendant himself admitted that the first hour of the scheduled visit he would still have been working. Both parties were thus in violation of the order on that day. Under these circumstances, the motion for contempt is granted, but no counsel fees are to be ordered.
C. Motion for Contempt #141
Motion for Contempt #141 complains about other specific instances in which the defendant claims that the plaintiff violated the access orders. One instance involved plaintiff allegedly demanding that defendant keep the child until 7:00 p.m. for a midweek access, when the court orders set his visitation time from 3:00 p.m. to 6:00 p.m. and the defendant also had an appointment at 6:30 p.m. The court order, however, had not specified a particular midweek day for visitation, and failure of the parties to agree about the time of the visit on one particular day does not mean that plaintiff is in contempt of the orders. The evidence is silent as to whether another day that week would have been feasible for a visit. The motion also complains that the plaintiff instructed Jake to hang up the telephone during a conversation with his father on one occasion, but the evidence as to this is not persuasive. The incident in June 2009, when the plaintiff refused to turn Jake over to the defendant's mother for a scheduled visitation does violate the court order of May 18, 2009, however. By then, there was no longer a requirement that the defendant be present for the entire visitation so there was no justification for the plaintiff's refusal to permit the grandmother to pick Jake up. The plaintiff is found in contempt for this refusal to comply with the court order. The court finds no other contempt proven as to this motion. In view of the fact that the defendant has also violated the court's access orders of May 18 by not exercising visitation since July 2009 and that the plaintiff prevailed on certain of the claims made in this motion, no counsel fees are awarded.
VI PLAINTIFF'S MOTION FOR COUNSEL FEES #135
The plaintiff has also asked that the defendant be required to pay her legal fees in these matters. Section 46b-62 of the General Statutes governs the award of attorneys fees in dissolution actions and provides that "the court may order either spouse . . . to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in [General Statutes § ] 46b-82 . . ." The court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988). Under the recent decision of Ramin v. Ramin, 281 Conn. 324, 353, 915 A.2d 790 (2007), a court also has "discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct."
Although the plaintiff has more net income than defendant, after payment of child support their net incomes will be relatively similar. Moreover, although the court could not find a specific earning capacity for the plaintiff, the court has no doubt that she does have an earning capacity in excess of her current unemployment compensation benefits. "[Connecticut] follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys fee from the loser." (Internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 844-45, 850 A.2d 133 (2004). Although § 46b-62 does provide a statutory basis for awarding counsel fees, "[w]hether to allow counsel fees [under §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion." (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 694, 830 A.2d 193 (2003). Based on the facts here and the financial circumstances of the parties, the court will exercise that discretion not to award fees under § 46b-62.