Lebrun v. Lebrun

Full title: JOSEPH R. LEBRUN v. LINDA LEBRUN

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Nov 7, 2008

2008 Ct. Sup. 17797 (Conn. Super. Ct. 2008)

Opinion

No. FA 94-0366032 S

November 7, 2008

Memorandum of Decision Re Plaintiff's Motions for Modification of Alimony (#s 141 and 144) and Defendant's Motions for Contempt (#s 142, 165 and 169)

STEPHEN F. FRAZZINI, J.

The plaintiff has moved to modify the alimony ordered in the judgment of dissolution of February 24, 1997, that he pay the defendant $700 per week while the defendant has moved for contempt for his failure to pay (i) that alimony in full since early in 2005 and (ii) the defendant's medical insurance as provided for in the judgment. Recently, the defendant filed additional contempt claims that the plaintiff had failed to comply with portions of the judgment that he transfer to the defendant certain whole life insurance policies and that he relinquish his claim to certain real estate. The parties appeared with counsel for hearing on these motions on numerous dates beginning on April 20, 2006, and ending on August 14, 2008. The lengthy course of these proceedings was caused partly by the fact that the plaintiff resides in Florida and partly by the mutual desire of the parties to conduct discovery. The matter is now ready for decision. For the reasons set forth below, the plaintiff's motion for modification is granted; the defendant's motions for contempt are granted in part and denied in part, as further specified below; and the plaintiff is ordered to pay defendant the alimony owed with funds held pursuant to the prejudgment remedy granted in this matter.

The defendant's motion to modify the amount of alimony is governed by General Statutes § 46b-86(a), which provides that "[a] final order for [alimony or] child support may be modified by the trial court upon a showing of a substantial change in the circumstances of either party." 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). "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, 832, 772 A.2d 681 (2001). Noncompliance with a court order, however, does not mandate a finding of contempt. Marcil v. Marcil, 4 Conn.App. 403, 494 A.2d 620 (1985). A court must also find that the party's conduct was wilful. Kennedy v. Kennedy, 88 Conn.App. 442, 443-44 (2005). "The inability of [a party] to obey an order of the court, without fault on his own part, is a good defense to a charge of contempt." Tobey v. Tobey, 165 Conn. 742, 746 (1974). Moreover, it is also "within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure." Marcil v. Marcil, supra, 4 Conn.App. at 405.

The evidence offered in the proceedings on these motions establishes that the plaintiff underwent a severe medical emergency in late November 2004 that has left him unable to work or to carry out the physical and mental pursuits and activities of which he had previously been capable. For many years he earned a substantial income selling eyewear to merchants and optical businesses. At the time of the judgment of dissolution in November 1997, he was a partner and an officer of Lawrence Eyewear earning $1,635 gross and $1,128 net per week. After the dissolution, he left Lawrence Eyewear and went to work as a sales representative for a manufacturer of Italian eyewear products. He also remarried; and his new wife, who had been the general manager at Lawrence Eyewear, left that job to run her own similar business under the name New Vision Optique.

In November 2004, however, he went into the hospital for an infection resulting from an earlier medical procedure, and during his two months there had severe complications, almost died, and never fully recovered, as the result of which he incurred substantial physical and mental disabilities. He is no longer able to work and has been determined to be totally disabled by the Social Security Administration. The defendant vigorously contests the plaintiff's claim that he no longer works or is able to work. She asserted through counsel that she believes he plays a guiding hand in or provides substantial support to the business run by his second wife, but no substantial or credible evidence was offered to support that claim. Although the evidence shows that he was the original organizer of the business entity named New Vision Optique in April 2002, the court finds credible his testimony that he is not now substantially involved in that business. The loss of his ability to work resulted in a substantial decline in his income, which is now only his monthly disability payment from Social Security

The medical emergency, the plaintiff's resulting physical and mental deterioration, his subsequent inability to work, and the resulting decline in his income all establish a substantial change in circumstances sufficient to consider a modification of his alimony obligation. "Following such a finding, the court then answers the question of modification, taking into account the general alimony factors found in C.G.S. § 46b-82."¹ Gervais v. Gervais, 91 Conn.App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). "[A]lthough the trial court may consider the same criteria used to determine the initial award `without limitation,' in doing so, its inquiry is necessarily confined to a comparison between the current conditions and the last court order." (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 730, 638 A.2d 1060 (1994). Ultimately, the court here must decide whether "circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it." Id., 737-38.

1 Section 46b-82(a) provides in pertinent part as follows:

(a) In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.

At the time of the judgment of dissolution in November 1997, the parties were already legally separated pursuant to a judgment of legal separation entered pursuant to a written separation agreement adopted by the court, Pittman, J., on February 24, 1997. Nine months later, on November 24, 1997, the court, Munro, J., entered an order changing the judgment to one dissolving the marriage pursuant to a separation agreement of that date, which incorporated the earlier separation agreement by reference with certain minor modifications, among which was an order that the plaintiff pay weekly alimony of $700 beginning January 1, 1998, for the lifetime term previously entered unless the defendant remarried or until either party died. The judgment also incorporated the February provision that the plaintiff would maintain the defendant on his health insurance policy "for as long as available by law" and after that would "be responsible for purchasing a similar life insurance policy for the Wife" until she remarried or either party died.

The plaintiff's financial affidavit at the time of the dissolution showed weekly income of $1,635 gross and $1,128 net from his position at Lawrence Eyewear and expenses of $2,071 per week, which included his $700 alimony obligation, and children's tuition of $288 per week. It listed assets worth $190,000, which included deferred compensation of $175,000. The defendant's financial affidavit showed earned income of $50 gross and $43 net per week from employment as a sales clerk at the Danbury Mall, expenses of $951 per week, assets valued at $414,960, which did not include any valuation for partial interests in certain unspecific "family real estate," and a debt of $65,000.

The financial affidavits and evidence here show that the plaintiff now has a weekly income of $532.50 per week gross and $444 net from Social Security disability insurance, weekly expenses of $4,497 (which include his weekly alimony obligation of $700 and weekly life insurance premiums of $800 that are currently being forgiven because of his disability). His financial affidavit showed liabilities of $342,652 and assets with equity of $366,703 (in which he claimed only a one-half interest, presumably because his second wife also co-owns the principal assets). The evidence shows that he used assets to pay alimony after he became disabled until he stopped paying the defendant.

The defendant submitted a signed financial affidavit dated September 5, 2007, showing weekly income as a "property manager" of "Valley Mall Manor LLC" of $350 gross and $223.77 net per week. She also prepared an earlier financial affidavit dated February 7, 2007. (She testified that, although the copy of the February financial affidavit introduced into evidence was unsigned, she had signed the one she kept in her possession.) The February 2007 financial affidavit listed her position as "property manager assistant" at Valley Mall Manor with income of $450 gross and $356.84 net per week. The September 2007 financial affidavit showed $1,019.46 in weekly expenses, approximately $300 less per week than the February affidavit, the principal difference between the two in this respect consisting of expenses for a Colorado home that she sold in the interval. The court had the distinct impression that the defendant was not being completely candid about her income or financial situation, because her testimony about her assets disclosed that she had ownership interests in certain businesses and of certain real estate² and it is unlikely she derives no income from all of these interests. Yet the court has no evidence permitting it to make a specific finding about her income other than to say that she holds a more substantial and responsible employment position now than she did at the time of the dissolution and that she earns more than she did then, probably more than she listed on either of the two 2007 financial affidavits, but how much more the court cannot determine.

2 It is impossible to determine the extent or value of the defendant's current assets. The February and September 2007 financial affidavits show that she has interests in various real estate holdings, but the two affidavits list different ones. The February affidavit listed a one-ninth interest in 94 Glenbrook Avenue, identified as the address for Valley Mall Manor LLC; and she testified in March 2007 that she worked at that address, had a one-sixth interest in that business, and had a one-ninth interest in the property worth $133,333. Neither of those affidavits listed an interest in that business as an asset or gave a value for it. The Glenbrook property was listed on the February 2007 affidavit, but not on the September one, which listed a different address for her employer, which remained the same. The September financial affidavit did not list two "Countryside" real estate complexes listed on her February affidavit; she testified in March that these were elderly housing complexes with approximately 50 units each in which she had inherited partial shares. The February 2007 financial affidavit, which listed assets worth $633,188.44, omitted her ownership of 2 Salem Road in Prospect, where she lives, and which her September 2007 financial affidavit listed as having equity of $190,000. The September 2007 financial affidavit listed assets with a total declared value of $584,000. In February 2007 she acknowledged owning a Colorado home where her daughter lived rent-free, but she said in September 2007 that she had recently sold the property for less than its mortgage debt. She also testified that she has a one-third interest in a Florida condominium that she shares with a sister who lives there rent-free for part of the year and receives all of the rental proceeds from people who live there at other times. In 2005, during the time that the plaintiff has not been paying her alimony, the defendant gave her daughter almost $90,000 from sale of a six-apartment complex. Neither financial affidavit listed "Superior Apartment Company," which she testified in September 2007 was "another company . . . one of our other companies" in which she and four other unnamed individuals had an ownership interest. The most the court can determine is that the defendant has assets that are worth at least $600,000 and probably substantially more.

After considering all the evidence offered in light of § 46b-82(a), the court concludes that a modification of alimony is warranted, and grants the motion. Periodic alimony shall be modified to one dollar per year. Since defendant through her counsel accepted service of the motion for modification on March 30, 2006, and agreed that any modification would be retroactive to then, the modification is granted effective that date. Between January 1, 2005, and March 30, 2006, the plaintiff owed periodic alimony for 64.85 weeks at $700, for a total of $45,399.99 during that time, of which he paid $12,100;³ and he owes an arrearage in periodic alimony for this period of $33,299.99.

3 Although plaintiff testified that he paid an additional $5,600 during this time, in view of his diminished mental faculties (to which he testified) and lack of documentary evidence to support his testimony, the court instead credits the defendant's testimony as to the amounts paid during this time.

The defendant has various claims of contempt that the court will address in turn, beginning with periodic alimony in motion for contempt #142. Despite the plaintiff's lengthy convalescence from the serious and debilitating illness he suffered, he has offered no adequate explanation for having failed to file a motion to modify the order of periodic alimony for more than a year after he left the hospital. That delay subjects him to a finding of contempt for which he offers no excuse or justification. The court declines to find him in contempt for periods after the motion for modification was filed and served on the defendant in March 2006.

The defendant also claims in motion for contempt #142 that the plaintiff should be held in contempt for not paying for the health insurance. The evidence showed that he stopped doing so in November 2005. The defendant offered evidence establishing that her medical insurance was now being paid for by Superior Apartment Companies, a company in which she testified she had an ownership interest but from which she testified that she receives no income. She has asked here that the plaintiff be required to reimburse Superior Apartment Company for the moneys it has paid for her health insurance. Since she did not list Superior Apartment Company on her financial affidavit as an asset in which she has an interest and claims she receives no income from it, the court has no way of determining whether the defendant has suffered any real financial loss, harm or detriment from the plaintiff's not paying for her health insurance since late 2005. In view of that lack of evidence, the court declines to find plaintiff in contempt for an act that may have had no harm or effect on defendant under the factual circumstances of this case.⁴

4 The defendant's counsel asserted in closing argument that the health insurance obligation is a non-modifiable property settlement. Under Sabrawski v. Sabrowski, 105 Conn.App. 49, 935 A.2d 1037 (2007), the ability to continue providing medical insurance may, however, be part of the alimony obligation in a particular case. In Sabrowski, the agreement expressly designated such an obligation as additional alimony, and the court held it to be such. Id., 58. In the present case, the health insurance obligation is contained in a section of the separation agreement designated "Health and Life Insurance," which is separate from the periodic alimony order in a section headed "Spousal Support" and from another section labeled "Division of Assets." The health insurance obligation is expressly subject to modification, however, for the same reasons that the separation agreement specified for modifying alimony — death of either party or remarriage of the wife. Were the health insurance obligation a property order, it would not be modifiable. The identical modification provisions here thus suggest that the parties envisioned it as an additional form of alimony, as in Sabrowski, even though not specifically designated as such. Plaintiff did not incorporate a request to modify the health insurance obligation into his motion; and closing argument of his attorney did not make clear whether plaintiff was requesting modification of this provision, or simply that it not be enforced during his disability. For the reasons set forth above, the court declines to hold defendant in contempt for not making the health insurance payments without ruling on modification.

The defendant also seeks a finding of contempt against the plaintiff in motion #165 (and duplicated in motion #169) for his not having transferred to her a certain life insurance policy pursuant to Section 6.2 of the separation agreement, which provides that the defendant "shall be permitted to retain ownership and beneficiary status on all whole life insurance policies covering the life of the Husband which are identified on his financial affidavit dated February 24, 1997, and the Husband shall transfer any interest he may have in those policies to the Wife." His financial affidavit of that date referred to a life insurance policy issued by "Penn Life" with a "face value" of $150,000. When defendant introduced into evidence here a copy of a life insurance policy issued by the William Penn Life Insurance Policy for $150,000 in effect at the time of the dissolution, plaintiff conceded that this exhibit was the policy referred to in his affidavit, but said that it was owned by his employer of the time, testimony confirmed by the text of the policy introduced into evidence. Under the terms of that policy, moreover, only the owner of the policy had the power to change ownership of the policy. From the evidence offered, therefore, the court concludes that the parties agreed to a provision that was impossible to carry out. Neither party has sought reformation of the judgment nor asked here to open the judgment as a result of this. The court declines, on this evidence, to find the plaintiff in contempt for violating a provision that he lacked capacity to carry out.

The defendant's final claim for contempt in motion #169 is that the plaintiff has refused to comply with section 5.4 of the separation agreement incorporated into the judgment of dissolution providing that he "relinquishes all claims to any and all real property held by the Wife either solely or jointly with members of her family." Recently presented with a quitclaim to transfer his share of the interest in apartment number three of Oasis Surfside in Florida, he declined to do so, and he repeated his refusal to do so during testimony during this proceeding. At the hearing before this court, he claimed that the provision of the separation agreement applies only to properties located in Connecticut, but there is no provision limiting its geographical effect. He acknowledged that he owns this property jointly with the defendant and siblings of each party and that it had been purchased many years before the dissolution; the property thus fits within the parameters established by provision 5.4. His refusal to comply with that provision of the separation agreement without lawful or legitimate excuse warrants a finding of contempt. The motion for contempt is granted with regard to this issue, and plaintiff is ordered to comply with this provision immediately, upon penalty of incarceration should he continue to refuse to do so. The court schedules a status conference for 9:30 a.m., which plaintiff must attend on Wednesday, November 19, in courtroom B2 of the Judicial District of Hartford, Family Division, 90 Washington Street in Hartford, to review his compliance with this order.

In conclusion, the court grants the motion for contempt #142 for defendant's failure to comply with the alimony order through March 2006, but not for unpaid alimony after that, and motion for contempt #169 for his failure to relinquish his interest in the Florida property. Motion for contempt #165 is denied. Plaintiff is ordered to pay all alimony arrearages within 30 days. To the extent that the arrearages are not paid within 30 days of this date, plaintiff shall also pay statutory interest of eight percent on all unpaid arrearages.⁵ The court, upon request of the parties, will enter an order releasing the funds held pursuant to prejudgment remedy to satisfy the alimony arrearages and any counsel fees awarded as set forth below. The plaintiff is also ordered to relinquish his interest in the Florida property immediately pursuant to section 5.4 of the separation agreement as set forth above. The motion for modification of periodic alimony is granted effective March 30, 2006.

5 The court concludes that an order of interest is appropriate here for any alimony arrearages not paid to plaintiff immediately at the annual rate of 8 percent. Section 37-3a(a) of the General Statutes 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." 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). As the court noted in Maloney v. PCRE, LLC, 68 Conn.App. 727, 755, 793 A.2d 1118 (2002), "A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated." (Internal quotation marks omitted.) The court finds that the defendant should be paid the full amount of alimony owed her within 30 days. To the extent plaintiff does not do so, he acts wrongfully. Wrongful detention of funds occurs upon his failure to pay the arrearages immediately. Accordingly, the court exercises its discretion to order statutory interest at the rate of eight percent per year on the arrearage owed and not paid within thirty days of the date of this decision; thereafter, interest shall accrue on unpaid arrearages at the annual rate of 8 percent.

Under General Statutes § 46b-87, the prevailing party in a contempt action may be awarded a reasonable attorneys fee.⁶ "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 exercising that discretion here, the court awards defendant reasonable attorneys fees on the motions for contempt for the following:

6 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."

(i) the services of her counsel through the date the motion for modification was served on defendant;

(ii) the services of her counsel in connection with enforcing section 5.4 of the separation agreement;

(iii) counsel fees for time expended on the prejudgment remedy application; and

(iv) time expended during these proceedings by her counsel to establish the arrearage owed through March 2006 and to enforce section 5.4 of the separation agreement.

Defendant's counsel shall file within two weeks an affidavit detailing the legal services provided to her pursuant to this order, the dates thereof, the amounts of time on each occasion, and the billing rates for counsel. If plaintiff files a written objection within two weeks thereafter, the court will schedule a hearing; otherwise, the court will decide the matter on the record. Smith v. Snyder, 267 Conn. 456, 480-81, 839 A.2d 589 (2004); Arcano v. Board of Education of City of Stamford, 81 Conn.App. 761, 770, 841 A.2d 742 (2004).