Opinion
FILE NO.: CN14-03008 CPI NO.: 17-23562
02-11-2019
M------ M----------, Petitioner, v. F---- M----------, Respondent.
DECISION AND ORDER ON PETITION RULE TO SHOW CAUSE
Before the Court is a Petition- Rule to Show Cause ("RTSC") filed by M------ M---------- (hereinafter "Wife"), by and through her attorney, David Gagne, Esquire, against F---- M---------- (hereinafter "Husband"), who is self-represented. Although the Petition-Rule to Show Cause was initially filed on August 3, 2017, Wife filed an Amended Petition on November 7, 2018, alleging Husband's ongoing non-compliance with several provisions of the November 19, 2015 Stipulation and Order Resolving Ancillary Matters. A hearing on Wife's petition was held on November 16, 2018. As of the date of the hearing, Husband had not filed an Answer to Wife's Amended Petition.
Procedural History
The parties entered into a Stipulation and Order Resolving Ancillary Matters on November 19, 2015 (hereinafter "Stipulation and Order"). In that Stipulation and Order, the parties agreed that Husband owed Wife $40,862.64, as his share of the marital assets. Due to Father's representations that he did not have the financial ability to pay an immediate lump sum, the parties entered into a two-year payment schedule with severe penalty provisions and an agreement that Husband would pay any legal fees associated with Wife having to seek enforcement of the Order, regardless of a finding of contempt.
On February 12, 2016, Wife filed her first Petition-Rule to Show Cause alleging, among other things, that Husband had not followed the agreed upon payment schedule contained in the November 19, 2015 Stipulation and Order. On December 1, 2016, this Court found Husband in contempt of the Stipulation and Order and entered a Judgment against Husband on December 16, 2019 (hereinafter "Judgment Order") in the amount of $43,989.42, which was to be due and owing immediately. The Judgment Order further stated that any interest and penalties for Husband's non-payment would continue to accrue pursuant to the terms of the Stipulation and Order, which provides that:
In the event full payment and any penalties are not received by the 5th day of the month or the payment does not clear, Husband shall be responsible for an additional payment of 5% of the then-remaining balance as a penalty. Penalties shall be due prior to the next monthly payment. Husband incurring a penalty shall not suspend his obligation to make the regular monthly payments called for under this agreement and an additional 5% penalty (calculated as provided above) shall apply to the subsequent late payments. Payments shall be applied as follows: first to any penalties due, second to past due monthly payments, third to regular monthly payments, and fourth to prepayments. In the event Wife is required to sue to enforce Husband's obligations under this paragraph, in addition to any other rights and/or remedies provided elsewhere in this agreement, Husband shall be responsible for Wife's attorney fees and costs. Husband consents to the implementation of a wage attachment in the event that Wife is required to seek enforcement of this provision.
On August 3, 2017, Wife filed a second Petition-Rule to Show Cause alleging that Husband continues to be in non-compliance with both the Stipulation and Order and the Judgment Order. On November 7, 2018, Wife filed an Amended Petition which outlined four outstanding issues for the Court to consider. First, Wife alleged that Husband still has not removed Wife's name from their joint TD checking account overdraft. Second, Wife alleged that Husband still has not removed Wife's name from the timeshare property at La Cabana Beach and Racquet Club. Third, Wife alleged that Husband has failed to exchange documents indicating the balance of the 529 College Savings account for their minor son, of which Husband is the custodian. Finally, Wife alleged that Husband has not paid Wife in accordance with either the Judgment Order or the Stipulation and Order, despite recently receiving bonuses at work which would enable him to do so.
Wife also filed a Motion to Compel on October 19, 2018. Wife requested that the Court compel Husband to produce documents which were first requested by Wife on January 2, 2018 and then again on August 15, 2018. On October 25, 2018, Husband filed a response to Wife's motion claiming that he had complied with the first request in January 2018. On November 12, 2018, this Court granted Wife's motion in part and indicated that the Court would not consider any documents which were included in the document request but were not produced to Wife.
On November 16, 2018 Court held a hearing on the Wife's Petition- Rule to Show Cause.
With regard to the TD checking account overdraft, Husband testified that because Wife is the primary borrower on the account, he is unable to remove Wife's name and assume the debt in his own name. The account is in good standing and that Husband makes payments on the account each month. As of the date of the hearing, Husband testified that there is approximately $700 remaining on the balance of the loan. Wife agreed with the information testified to by Husband and, as such, requested to dismiss this part of her petition as Husband is actively paying on the loan without issue.
With regard to the La Cabana Beach and Racquet Club timeshare, Wife testified that Husband never removed Wife's name from the timeshare property thus assuming full ownership of said property interest. She claimed that this is in direct violation of the November 19, 2015 Stipulation and Order wherein the parties agreed that Husband would be the sole and exclusive owner of the timeshare. The Stipulation and Order further provided that "Husband shall, within 90 days, take any and all action necessary to remove Wife from ownership and all liability with respect to the Timeshare." The Order further stated that, if Husband fails to remove Wife from the timeshare within the allotted time, "Husband shall be penalized in the amount of $100.00 per month, immediately due and payable to Wife, for each 30-day period (or portion thereof) for which Wife remains listed as an owner or otherwise liable for the timeshare."
Husband, in response, testified that he has tried to comply with the timeshare provisions but that he is unable to remove Wife's name from the timeshare property without her assistance. Husband explained that, throughout the marriage, Wife was solely responsible for handling the timeshare agreement and that Husband has never interacted with the timeshare on his own. When Husband attempted to reach out to the timeshare company to transfer the property solely in his name, the company informed him that Wife must sign a specific form (Petitioner's Exhibit #2) before a notary in order for the company to transfer the ownership interest to Husband exclusively. Husband testified that he provided Wife with a copy of this form in August 2018, one year after Wife filed her RTSC Petition, but that Wife has not completed the form. In the meantime, Husband indicated that Wife has not been held liable for anything relating to the timeshare property as he alone has been paying the annual maintenance fees (totaling approximately $800 a year) and has independently taken steps to sell the timeshare property. Wife acknowledged having received the form in August 2018 but conceded that she had not yet signed the form. However, in an effort to expedite the resolution of the timeshare issue, Wife signed the form during this hearing and provided the document to Husband so that he can complete the process of removing Wife's name from the timeshare property. Wife, nevertheless, still requested a Judgment holding Husband liable for the $100 per month penalty that is owed under the Stipulation and Order for Husband failing to remove Wife from the timeshare within the allotted period of time.
With regard to the 529 College Savings Account for their minor Child, Wife testified that Husband has violated the Stipulation and Order by failing to provide Wife with documents indicating the balance of the account upon her request. Pursuant to the November 19, 2015 Stipulation and Order, Mother is to serve as the custodian for their son, N---'s, account and Father is to serve as the custodian of their other son, J---'s, account. Furthermore, "the parties agree to exchange, within 10 days of request, statements of the balances of the accounts" and all funds within the account are to be used solely for "the parties' children's education." The Order further provides that "in the event either party withdraws funds for purposes other than those for which distribution from the 529 plans are permitted or as provided for in this agreement, the party shall immediately be liable to the other for the full balance of the 529 plan, payable in cash within 10 days." Wife verbally requested a statement of the balance of J---'s account from Husband during their child support mediation in June 2018. Having received no response, Wife again requested a statement of the balance of the account on August 15, 2018, through her attorney at the time, Achille Scache, Esquire. Wife claims that Husband still failed to exchange the information.
Husband conceded that Wife had made a "casual" request for the document in June and then more formal request through her attorney in August. Nevertheless, Husband testified that he is in possession of the balance statement but has simply neglected to turn the document over to Wife. Husband further admitted that, in 2016, he liquidated approximately $18,000 from the 529 account but stated that he intends to repay this amount into the account before J---starts college. Husband explained that he only partially liquidated the account because he had recently lost his job and was facing eviction and had no other financial resources to rely on. In response to Husband failing to provide the balance statements and partially liquidating the account, Wife requested that she be made the custodian of J---'s 529 account, in addition to N---'s, and expressed her willingness to be bound by the same terms and conditions as contained in the Stipulation and Order and Wife further provided a copy of the necessary form for Husband to sign in order to do this. Petitioner's Exhibit #5. Husband objected to transferring his ownership of J---'s 529 account to Wife because he claims that this is one of the few ways that he has been able to maintain a connection and relationship with his son.
With regard to the allegations that Husband has not paid Wife in accordance with the Court-ordered division of marital assets, Wife contends that not only has Husband continued to be non-compliant with the payment arrangement as outlined in the Stipulation and Order, but Husband still has not fully satisfied the previous Judgment Order of $43,989.42. Wife testified that not only is Husband liable to Wife for the amount owed under these Orders, but Husband is further liable to Wife for penalties associated with the untimely payments. Pursuant to the November 19, 2015 Stipulation and Order, all funds owed to Wife were to be paid to Wife in twenty-four (24) equal installments of $1,702.61, beginning on December 1, 2015. Payments were to be postmarked by the first day of each month and received by Wife no later than the fifth day of each month. In the event that payment is not received to Wife by the fifth of the month, or if the payment is received by does not clear, the Stipulation and Order provides that:
Husband shall be responsible for an additional payment of the then-remaining balance as a penalty. Penalties shall be due prior to the next monthly payment. Husband incurring a penalty shall not suspend his obligation to make the regular monthly payment called for under this agreement and an additional 5% penalty (calculated as provided above) shall apply to subsequent late payments. Payments shall be applied as follows: first to any penalties due, second to past due monthly payments, third to regular monthly payments, and fourth to prepayments.
Wife contends that Husband has not submitted any payments since June 2018, resulting in an outstanding balance of $73,545.40. Wife further submitted a spreadsheet summarizing the entire payment and penalty history with running balances. Petitioner's Exhibit # 3. Wife testified that while she has no knowledge of Husband's current financial situation, in 2017 Husband earned over $231,000 which leads her to believe Husband has the financial means of paying this debt. In support of this contention, Wife provided a copy of Husband's earning statement from December 2017, which listed Husband's year to date earnings as $231,942.58.
Husband denied that he has the current financial ability to satisfy the debts in full. Husband testified that, contrary to Wife's testimony and calculations, he has satisfied the principal balance of the December 2016 Judgment Order and is currently paying towards the penalties on that amount. Husband indicated that he exhausted all of his financial resources in order to be able to pay this debt because, while he earned a substantial income in 2017, this does not necessarily mean that he earned a comparable amount in 2018 because his annual income varies from year-to-year. As a result, Husband testified that his annual income can fluctuate significantly depending on the number of sales he makes throughout the year. Husband claimed that he has not made any sales since June of this year and is reportedly living paycheck to paycheck. Husband further conceded that, in light of his current financial situation, he has not made any payments to Wife since June of 2018 and is unable to immediately satisfy the full amount requested by Wife. Notwithstanding these claims, Husband did not provide any documentation to support his testimony regarding his current financial situation or diminished income.
Husband further suggested that the current payment plan and penalty system were both unfair and burdensome, despite the fact that Husband agreed to and signed the current Stipulation and Order while represented by counsel. Husband explained that, at the time, he had no concerns with the penalty system because he had no intention of falling behind on his payments due to his then-existing financial situation. Husband testified that he was subsequently separated from his employer which resulted in Husband falling behind in his monthly payments to Wife. Husband further testified that he has no idea what the current payment schedule and penalty system is because he has not looked at the Stipulation and Order since he signed it and, in fact, has no idea as to the location of his copy of the document.
DISCUSSION
The purpose of a Petition RTSC seeking to hold someone in civil Contempt of Court is to enforce compliance with previous a previous Court Order. The standard for a Petition RTSC is well-established in this Court. "In order to find someone in civil contempt of the Court's Order the Court must first find by clear and convincing evidence that a violation of its Order has taken place." Specifically, the Court must find that 1) a valid mandate, judgment or order exists; 2) the alleged violator had the ability to abide by the valid mandate, judgment or order; and 3) the alleged violator disobeyed the valid mandate, judgment or order. The failure to obey the Court's Order must not be a mere technicality but must be done in a "meaningful way." Because the purpose of levying a civil contempt fine is to coerce compliance with a Court Order, subsequent compliance with the Order may purge the finding of civil contempt.
J.T.D. v. B.N.D, No. CN07-04006, 2010 WL 2708610, at *4 (Del. Fam. Ct. May 5, 2010) (citing Feliciano v. Colon, 697 F. Supp. 26, 34 (D.P.R. 1987).
See Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. Ct. 1999).
J.T.D. v. B.N.D., 2010 WL 2708610 at *4.
DiSabatino v. Salicete, 671 A.2d 1344, 1350 (Del. 1996) (citing Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994)).
TD Checking Account
In light of Wife's request to dismiss the portion of her Petition RTSC relating to Husband's failure to remove Wife's name from the TD Checking Account, the Court will grant Wife's request to amend her petition accordingly and will not render a decision on this issue.
La Cabana Beach and Racquet Club Timeshare
With regard to the timeshare property, the Court finds that a valid mandate, judgment, and Order exists as the Stipulation and Order, which both parties agreed to and signed, clearly outlines Husband's obligation to take any and all action necessary to remove Wife's name from the timeshare property within ninety days of the issuance of the Order. What is less clear, however, are the penalties that Husband is to face in the event that he fails to comply with this provision. While the Order directs Husband to remove Wife from ownership and liability within ninety days, other portions of the same paragraph impose penalties on Husband for failing to remove Wife from the timeshare property within a thirty-day period. The Order goes on to indicate that if Husband does not remove Wife from liability within 30 days, he is to pay $100.00 as a penalty and must continue paying this amount "for each 30 day period (or portion thereof) for which Wife remains listed as an owner or otherwise liable for the timeshare past the 30 days afforded to him under the agreement." Thus, it is not clear under the Order whether Husband was to comply with the timeshare provisions within thirty days or ninety days.
Nevertheless, Husband's testimony suggested that he did not make any attempt to remove Wife from the timeshare until August 2018, nearly three years after the issuance of the Stipulation and Order. Furthermore, as of the date of this hearing, Husband still had not completed the process of removing Wife's ownership and liability in the timeshare property. While the Court accepts and understands that Wife needed to assist Husband in complying with this provision of the Stipulation and Order, this does not negate the fact that Husband waited nearly three years to provide the necessary forms to Wife and failed to follow-up with Wife to ensure his own compliance with the Order. As Husband did not present any evidence justifying the delay in his compliance or any evidence to suggest that Wife purposefully frustrated Husband's attempt to obtain the signed forms, the Court finds that Husband had the ability to execute the necessary paperwork to remove Wife from the timeshare, with Wife's assistance, but failed to do so. Husband has, therefore, violated Paragraph 1(b) of the November 19, 2015 Stipulation and Order and is in civil Contempt of the Court.
However, as Husband provided the necessary forms to Wife, and Wife signed these forms during the hearing, the Court finds that Husband may absolve himself of this Contempt by submitting these documents to the timeshare company and taking all steps necessary to process the transfer of the timeshare into his name, including paying any fees or costs associated with this transfer. With regard to any penalties owed to Wife for Husband's non-compliance with the Stipulation and Order, the Court will not impose any penalties on Husband at this time for his failure to remove Wife's name from the timeshare property. Not only is the penalty schedule so ambiguous that a reasonable person reading the Order would not understand what is required of them, but the Court also finds that a penalty of $100.00 is both excessive and burdensome, in light of the fact that there was no evidence to suggest that Wife has been harmed in any way by Husband's non-compliance. The testimony presented is that Husband has assumed full responsibility for all fees and payments associated with the timeshare property and has independently taken steps towards selling this timeshare without Wife's involvement. Husband testified that he remains up-to-date with all payments associated with the timeshare property and the Court finds that Husband has essentially assumed full ownership responsibility of the timeshare, though Wife technically remains a legal owner. As Wife has not suffered any harm or financial damages stemming from Husband's Contempt, the Court finds that the contradictory penalty system provided for in the Stipulation and Order should not be imposed on Husband at this time and the Court will not direct Husband to pay these penalties to Wife.
529 College Savings Account
With regard to the 529 Saving's account, the Court finds that a valid mandate, judgment, and Order exists as the Stipulation and Order, which both parties agreed to and signed, indicates that the parties must exchange statements of the balances of the account upon request and are further prohibited from withdrawing funds from the account "for purposes other than those from which distributions from 529 plans are permitted." Wife requested a copy of the statement of the balance for the 529 Account created for the parties minor son, J---, on two separate occasions. First, Wife orally requested the document from Husband in June 2018. Then, Wife, through her attorney, sent a formal written request for the document in August 2018. Husband, in his testimony, acknowledged that Wife had made such requests and admitted that he had the document in his possession but simply decided not to produce the document to Wife. As of the date of the hearing, Husband still had not provided the document to Wife. While Husband attempted to dismiss Wife's initial request as merely "casual", there is nothing in the Stipulation and Order which requires a formal written request for the account statements. Therefore, because Husband had access to the documents, and indeed admitted that he had such documents in his possession, the Court finds that Husband had the ability to comply with the Order, by providing the document to Wife within ten days, but failed to do so, in violation of the Stipulation and Order, as a result, the Court finds Husband in Contempt of Court with regard to this provision.
The relevant portion of the Stipulation and Order states that the parties "agree to exchange...statements of the balances." It is not clear, based on the plain language of this provision, whether this must be a mutual exchange, wherein each party is expected to provide the document to the other party within ten days of a request, or a unilateral exchange, wherein only the party who has been asked to provide the statement balances must do so. Because neither party addressed this ambiguity or raised the issue during the hearing, the Court will assume that all exchanges were anticipated to be unilateral exchange wherein only the party who has been asked to provide the statement balances must do so. --------
Not only did Husband fail to provide a statement of the balance to Wife within ten days, but Husband further admitted in his testimony that he partially liquidated the 529 account in 2016 by withdrawing approximately $18,000 to pay his own personal expenses and debts. Pursuant to the Stipulation and Order, "in the event either party withdraws funds for purposes other than those for which distributions from 529 plans are permitted or as provided for in this agreement, that party shall be immediately liable to the other for the full balance of the 529 plan, payable in cash within 10 days." Husband testified that he used $18,000 from the 529 account to pay rent and other bills as Husband lacked other financial resources at the time and was facing eviction. While the Court acknowledges Husband's financial need, this does not grant Husband permission to use funds from the 529 account in order to pay off his own personal debts. Pursuant to the Stipulation and Order, the 529 account is to be used for "the parties' children's education." The Court, therefore, finds that Husband violated the Stipulation and Order by converting funds to his personal use for purposes other than his child's education and is in Contempt of Court with regard to this provision as well.
However, again, it is not clear based on the language of the Stipulation and Order, what the repercussions are in the event that a party improperly withdraws funds from the 529 account. The relevant portion of the Stipulation and Order states that "the party shall be immediately liable to the other for the full balance of the 529 plan, payable in cash within 10 days." This provision carries several plausible meanings. For example, this clause could be interpreted to require that the violating party reimburse the other party for the improperly withdrawn amount in order to make the 529 account whole, once again. Alternatively, the provision could also be understood to require that the violating party pay the other a separate sum of money equivalent to the balance of the 529 account as reimbursement. Even if this is the correct interpretation of the provision, there is further ambiguity with the term "balance." It is not clear if "balance" refers to the remaining balance of the 529 account after the withdrawal, or the balance of the 529 account as it should be, without the improper withdrawal. The parties did not address the ambiguity of the Stipulation and Order during the hearing as Wife's only prayer for relief of Husband's Contempt was to have the 529 account transferred to her name so that she would be the custodian of the account going forward. Based on the representations made during the hearing, the Court finds that an equitable resolution of this issue, which would purge Husband's contempt, would be for Husband to transfer the account to Wife's name so that she will be the custodian of this account going forward, in addition to reimbursing Wife for the full amount of money he liquidated from the 529 account.
Outstanding Payments on Marital Assets and Judgment Order
With regard to the division of marital assets, the Court finds that a valid mandate, judgment, and Order exists as the Stipulation and Order, which both parties agreed to and signed, specifies that Husband shall pay to Wife $1,702.61 each month, for a minimum of twenty-four months, as part of a payment arrangement to satisfy the $40,862.64 balance of the property division. The Stipulation and Order further provides that, in the event Husband makes a late payment, or fails to pay the entire amount due for that month, "Husband shall be responsible for an additional payment of 5% of the then-remaining balance as a penalty. Penalties shall be due prior to the next monthly payment." In addition to this payment schedule, this Court also issued a Judgment Order on December 19, 2016 which further required Husband to pay Wife a sum of $43,989.42, which reflected the outstanding balance on the payments and penalties between December 2015 (when the parties' payment schedule first began) and December 2016. Under this Judgment Order, Husband owed Wife $43,989.42 immediately but was still required to make the payments under the original payment arrangement as well.
Husband argued that he did not have the ability to abide by the payment arrangement or the Judgment Order due to his limited income. Notwithstanding these financial constraints, both Husband and Wife agreed that Husband had made some, although not all, of the required payments and Husband believed that he had sufficiently paid off the principal balances under both the Judgment Order and the Stipulation and Order and only had penalties and fees remaining. Wife conceded that she did not know how much Husband had earned in the year 2018 but submitted a copy of his final paystub from 2017 (Petitioner's Exhibit #4) which indicated that Husband had earned approximately $231,000 during that same year. Husband testified that he was unexpectedly separated from his employer in 2017 but was able to find a new job later in the year. As to his income, Husband stated that because he sells capital equipment, much of his income is based on commissions and it would be impossible for him to predict exactly how much money he will earn in any given year. Husband further explained that, with great financial difficulty, he was able to pay approximately $20,000 towards the Judgment Order since it was entered but testified that he has had to exhaust all of his means of income and is currently not financially stable as a result. Husband was further unaware of the amount of money he had earned in the year 2018 but claimed that he had not made a sale since June of 2018. Husband also had no documentation to corroborate his testimony regarding his income or lack thereof.
In light of Husband's failure to demonstrate, though financial statements, paystubs, or otherwise, that he has been incapable of complying with the Judgment Order and the Stipulation and Order, and because Wife has demonstrated that Husband earned more than sufficient income to satisfy these obligations in 2017, the Court, finds that Husband has the ability to abide by these Orders. Wife also submitted a spreadsheet (Petitioner's Exhibit #3) which documented each payment Husband has made and the running balances and penalties, after allocation of payments made by Husband. Husband admitted that the document accurately reflected all payments he had either made or had not made. According to the spreadsheet, Husband has not made a payment since June 2018 and, prior to this, missed payment for nine other months and failed to ever pay the entire amount due each month. Therefore, based on this spreadsheet, it is clear that Husband has not complied with the payments required of him in both the Stipulation and Order and the Judgment Order. Based on the calculations presented in Wife's spreadsheet, Husband owes Wife an outstanding balance of $73,545.40. While Husband did not object to this final amount owed, he repeatedly expressed that he would not be able to pay such a high sum of money immediately.
While the Court accepts Wife's spreadsheet as a complete and accurate account of all payments made by Husband, the Court finds the spreadsheet, and final amount owed, to be erroneous because of the manner in which payments made by Husband have been applied. Pursuant to the Stipulation and Order, in addition to the regular monthly payment of $1,702.61, in the event that Husband either makes a payment late or fails to pay the entire monthly balance of any amounts owed, Husband is also liable to Wife for an additional penalty of 5% of the "then-remaining balance." However, it is not clear, within the text of the Stipulation and Order, what is meant by "then-remaining balance." Based on the calculations presented in Wife's spreadsheet, it appears that Wife believes the "then-remaining balance" to refer to the entire outstanding principal balance of the division of the martial assets. As such, because Husband is never able to pay down this principal balance, these penalties are listed as a stagnant $2,043.13 throughout the entire history of the case.
However, the Court does not find this interpretation to be correct. Because the penalty language in the Stipulation and Order immediately follows provisions indicating that the penalties will only be triggered if Husband does not pay the entire amount he is required to in a timely manner, it appears that the correct understanding of "then-remaining balance" should be the remaining balance that Husband has failed to pay for that month's scheduled payment. For example, in months where Husband has failed to pay on time, the "then-remaining balance" is the entire payment owed for that month and Husband is liable to Wife for an additional 5% penalty of whatever amount Husband failed to pay in a timely manner that month. Thus, the penalty is applied only to the difference between what Husband was required to pay for that month and what he has actually paid, rather than the entire outstanding principal balance. As such, the calculations presented by Wife do not accurately reflect Husband's outstanding balance, as the penalties were incorrectly applied to the entire outstanding principal balance, rather than the amount Husband's monthly deficiency.
In light of the above discussion, the Court must also address the previous Judgment Order issued in this matter. Wife was granted judgment in the amount of $43,989.42, however, this amount was calculated using the same erroneous understanding of the "then-remaining balance" explained above. Therefore, the Court must now, sua sponte, correct the balance owed to Wife under the first Judgment Order and retroactively amend this portion of the December 19, 2016 Judgment Order to reflect the correct judgment amount to be $24,705.11. The Court is not amending any other aspects of the December 19, 2016 Judgment Order aside from the judgment amount. Below is a table summarizing the calculations and running balances using the corrected penalty calculations.
FIRST JUDGMENT ORDER REVISED CALCULATIONS
| Month | PaymentsMade | PenaltyAmountDue | PenaltyDeficiency | PrincipalBalanceDue | PrincipalBalanceDeficiency | RemainingBalance | AdditionalPenaltyIncurredthisMonth |
|---|---|---|---|---|---|---|---|
| Dec. 15 | 0 | - | - | 1,702.61 | 1,702.61 | 1702.61 | 85.13 |
| Dec. 15* | 1,702.61 | 85.13 | 0 | 1,702.61 | 85.13 | 85.13 | 4.26 |
| Jan. 16 | 0 | 4.26 | 4.26 | 1,787.74 | 1,787.74 | 1,792.00 | 89.60 |
| Jan. 16* | 1,702.61 | 93.86 | 0 | 1,787.74 | 178.99 | 178.99 | 8.95 |
|---|---|---|---|---|---|---|---|
| Feb. 16 | 0 | 8.95 | 8.95 | 1,881.60 | 1,881.60 | 1,890.55 | 94.53 |
| Mar. 16 | 0 | 103.48 | 103.48 | 3,584.21 | 3,584.21 | 3,687.69 | 184.38 |
| Apr. 16 | 0 | 287.86 | 287.86 | 5,286.82 | 5,286.82 | 5,574.68 | 278.73 |
| May 16 | 0 | 566.59 | 566.59 | 6,989.43 | 6,989.43 | 7,556.02 | 377.80 |
| Jun. 16 | 0 | 944.39 | 944.39 | 8,692.04 | 8,692.04 | 9,636.43 | 481.82 |
| Jul. 16 | 0 | 1,426.21 | 1,426.21 | 10,394.65 | 10,394.65 | 11,820.86 | 591.04 |
| Aug. 16 | 500 | 2,017.25 | 1,517.25 | 12,097.26 | 12,097.26 | 13,614.51 | 680.73 |
| Sep. 16 | 500 | 2,197.98 | 1,697.98 | 13,799.87 | 13,799.87 | 15,497.85 | 774.89 |
| Oct. 16 | 300 | 2,972.87 | 2,672.87 | 15,502.48 | 15,502.48 | 18,175.35 | 908.77 |
| Nov. 16 | 0 | 3,581.64 | 3,581.64 | 17,205.09 | 17,205.09 | 20,786.73 | 1,039.34 |
| Dec. 16 | 0 | 4,620.98 | 4,620.98 | 18,907.70 | 18,907.70 | 23,528.68 | 1,176.43 |
| TOTAL JUDGMENT AMOUNT$24,705.11 |
In addition to re-calculating the initial Judgment Order, the Court also believes it is necessary to correct the calculations presented by Wife for the amounts due after the Judgment Order was issued, in light of the amended judgment amount. Because a judgment is a final Order of the Court, this amount should be separate and apart from the remaining payment arrangement. Additionally, because the judgment was due and owing immediately, and subject to the same penalty schedule as the original Stipulation and Order, for each month that Husband does not pay the full judgment amount, he is liable to Wife for an additional 5% penalty fee on the entire judgment, including any previously incurred penalties.
While Husband was required to pay this Judgment immediately, he continued to be bound by the initial payment arrangement as well. Therefore, Husband was required to continue paying $1,702.61 each month, in accordance with the Stipulation and Order, in addition to the judgment amount. In her spreadsheet, Wife did not separate the judgment from the remaining payment arrangement payments but, instead just continued to calculate the payments as if the Judgment had not been issued, however, each of these two balances should be separated.
This is also particularly important for Husband's payments because, under the Stipulation and Order and Judgment Order, payments that Husband makes are to be first applied to any penalties. Because Husband owes the full Judgment amount immediately, for each month that he fails to pay that balance, he is liable to a 5% penalty on that balance. This is in addition to the penalties Husband will continue to incur for any non-payments in his remaining payment arrangement schedule as well. Therefore, based on the calculations of this Court, it appears that Husband never actually pays down his principal balance, as Husband suggested, because he continues to incur significant penalties on both the judgment and original payment arrangement each month.
Because Husband does not dispute his payment amounts as listed in Wife's spreadsheet, the Court will rely on these amounts in calculating the balances owed by Husband. Accordingly, Husband owes Wife an outstanding balance of $32,437.17, resulting from Judgment Order, as well an outstanding balance of $28,465.83, resulting from Husband's continued payment arrangement under the Stipulation and Order. Below are tables summarizing the calculations and running balances for these payments and penalties.
DECEMBER 19, 2016 JUDGMENT ORDER PAYMENTS
| Month | PaymentsMade | PenaltyAmountDue | PenaltyDeficiency | PrincipalBalanceDue | PrincipalBalanceDeficiency | RemainingBalance | AdditionalPenaltyIncurredthisMonth |
|---|---|---|---|---|---|---|---|
| Jan. 17 | 500 | - | - | 24,705.11 | 24,205.11 | 24,205.11 | 1,210.26 |
| Feb. 17 | 400 | 1,210.26 | 810.26 | 24,205.11 | 24,205.11 | 25,015.37 | 1,250.77 |
| Mar. 17 | 400 | 2,061.03 | 1,661.03 | 24,205.11 | 24,205.11 | 25,866.14 | 1,293.31 |
| Apr. 17 | 1,702.61 | 2,954.34 | 1,251.73 | 24,205.11 | 24,205.11 | 25,456.84 | 1,272.84 |
| May 17 | 800 | 2,524.57 | 1,724.57 | 24,205.11 | 24,205.11 | 25,929.68 | 1,296.48 |
| Jun. 17 | 0 | 3,021.05 | 3,021.05 | 24,205.11 | 24,205.11 | 27,226.16 | 1,361.31 |
| Jul. 17 | 200 | 4,382.36 | 4,182.36 | 24,205.11 | 24,205.11 | 28,387.47 | 1,419.37 |
| Aug. 17 | 300 | 5,601.73 | 5,301.73 | 24,205.11 | 24,205.11 | 29,506.84 | 1,475.34 |
| Sep. 17 | 1703 | 6,777.07 | 5,074.07 | 24,205.11 | 24,205.11 | 29,279.18 | 1,463.96 |
| Oct. 17 | 1703 | 6,538.03 | 4,835.03 | 24,205.11 | 24,205.11 | 29,040.14 | 1,452.01 |
| Nov. 17 | 1703 | 6,287.04 | 4,584.04 | 24,205.11 | 24,205.11 | 28,789.15 | 1,439.46 |
| Dec. 17 | 1703 | 6,023.50 | 4,320.50 | 24,205.11 | 24,205.11 | 28,525.61 | 1,426.28 |
| Jan. 18 | 1703 | 5,746.78 | 4,043.78 | 24,205.11 | 24,205.11 | 28,248.89 | 1,412.44 |
| Feb. 18 | 1703 | 5,456.22 | 3,753.22 | 24,205.11 | 24,205.11 | 27,958.33 | 1,397.92 |
| Mar. 18 | 1703 | 5,151.14 | 3,448.14 | 24,205.11 | 24,205.11 | 27,653.25 | 1,382.66 |
| Apr. 18 | 4000 | 4,830.80 | 830.80 | 24,205.11 | 24,205.11 | 25,035.91 | 1,251.80 |
| May 18 | 2,082.60 | 2082.60 | 0 | 24,205.11 | 24,205.11 | 24,205.11 | 1,210.26 |
| Jun. 18 | 1,210.26 | 1,210.26 | 0 | 24,205.11 | 24,205.11 | 24,205.11 | 1,210.26 |
| Jul. 18 | 0 | 1,210.26 | 1,210.26 | 24,205.11 | 24,205.11 | 25,415.37 | 1,270.77 |
| Aug. 18 | 0 | 2,481.03 | 2,481.03 | 24,205.11 | 24,205.11 | 26,686.14 | 1,334.31 |
| Sep. 18 | 0 | 3,815.34 | 3,815.34 | 24,205.11 | 24,205.11 | 28,020.45 | 1,401.02 |
| Oct. 18 | 0 | 5,216.36 | 5,216.36 | 24,205.11 | 24,205.11 | 29,421.47 | 1,471.07 |
| Nov. 18 | 0 | 6,687.43 | 6,687.43 | 24,205.11 | 24,205.11 | 30,892.54 | 1,544.63 |
| TOTAL OUTSTANDING AMOUNT$32,437.17 |
STIPULATION AND ORDER PAYMENT ARRANGEMENT PAYMENTS
| Month | PaymentsMade | PenaltyAmountDue | PenaltyDeficiency | PrincipalBalanceDue | PrincipalBalanceDeficiency | RemainingBalance | AdditionalPenaltyIncurredthisMonth |
|---|---|---|---|---|---|---|---|
| Jan. 17 | 0 | - | - | 1,702.61 | 1,702.61 | 1,702.61 | 85.13 |
| Feb. 17 | 0 | 85.13 | 85.13 | 3,405.22 | 3,405.22 | 3,490.35 | 174.52 |
| Mar. 17 | 0 | 259.65 | 259.65 | 5,107.83 | 5,107.83 | 5,367.48 | 268.37 |
| Apr. 17 | 0 | 528.02 | 528.02 | 6,810.44 | 6,810.44 | 7,338.46 | 366.92 |
| May 17 | 0 | 894.94 | 894.94 | 8,513.05 | 8,513.05 | 9,407.99 | 470.40 |
| Jun. 17 | 0 | 1,365.34 | 1,365.34 | 10,215.66 | 10,215.66 | 11,581.00 | 579.05 |
| Jul. 17 | 0 | 1,944.39 | 1,944.39 | 11,918.27 | 11,918.27 | 13,862.66 | 693.13 |
| Aug. 17 | 0 | 2,637.52 | 2,637.52 | 13,620.88 | 13,620.88 | 16,258.40 | 812.92 |
| Sep. 17 | 0 | 3,450.44 | 3,450.44 | 15,323.49 | 15,323.49 | 18,773.93 | 938.70 |
| Oct. 17 | 0 | 4,389.14 | 4,389.14 | 17,026.10 | 17,026.10 | 21,415.24 | 1,070.76 |
| Nov. 17* | 0 | 5,459.90 | 5,459.90 | 18,728.71 | 18,728.71 | 24,188.61 | 1,209.43 |
| Dec. 17 | 0 | 6,669.33 | 6,669.33 | 18,728.71 | 18,728.71 | 25,398.04 | 1,269.90 |
| Jan. 18 | 0 | 7,939.23 | 7,939.23 | 18,728.71 | 18,728.71 | 26,667.94 | 1,333.40 |
| Feb. 18 | 0 | 9,272.63 | 9,272.63 | 18,728.71 | 18,728.71 | 28,001.34 | 1,400.07 |
| Mar. 18 | 0 | 10,672.70 | 10,672.70 | 18,728.71 | 18,728.71 | 29,401.41 | 1,470.07 |
| Apr. 18 | 0 | 12,142.77 | 12,142.77 | 18,728.71 | 18,728.71 | 30,871.48 | 1,543.57 |
| May 18 | 2,917.40 | 13,686.34 | 10,768.94 | 18,728.71 | 18,728.71 | 29,497.65 | 1,474.88 |
| Jun. 18 | 9,730.90 | 12,243.82 | 2,512.92 | 18,728.71 | 18,728.71 | 21,241.63 | 1,062.08 |
| Jul. 18 | 0 | 3,575.00 | 3,575.00 | 18,728.71 | 18,728.71 | 22,303.71 | 1,115.19 |
| Aug. 18 | 0 | 4,690.19 | 4,690.19 | 18,728.71 | 18,728.71 | 23,418.90 | 1,170.95 |
| Sep. 18 | 0 | 5,861.14 | 5,861.14 | 18,728.71 | 18,728.71 | 24,589.85 | 1,229.49 |
| Oct. 18 | 0 | 7,090.63 | 7,090.63 | 18,728.71 | 18,728.71 | 25,819.34 | 1,290.97 |
| Nov. 18 | 0 | 8,381.60 | 8,381.60 | 18,728.71 | 18,728.71 | 27,110.31 | 1,355.52 |
| TOTAL OUTSTANDING AMOUNT$28,465.83 |
In sum, Husband has an outstanding balance, including past due payments and penalties, which totals $60,903 at this time. ACCORDINGLY, IT IS HEREBY ORDERED THIS 11TH DAY OF FEBRUARY 2019 AS FOLLOWS:
1. The Court finds Husband in Contempt of both the November 19, 2015 Stipulation and Order Resolving Ancillary Matters as well as the Court's December 19, 2016 Order entering judgment against Husband.
2. Due to previous errors by the Court in calculating the judgment amount, the Order dated December 19, 2016 is amended to reflect the correct Judgment amount of $24,705.11. All other provisions of this Order are to remain in full force and effect.
3. With regard to the outstanding payments for the marital assets, judgment is entered against Husband in the amount of $60,903, which includes the $24,705.11 judgment indicated in paragraph 2 above. This Judgment is due and owing immediately. Penalties shall continue to accrue pursuant to the terms of the parties' November 19, 2015 Stipulation and Order, which provides that:
In the event full payment and any penalties are not received by the 5th day of the month or the payment does not clear, Husband shall be responsible for an additional payment of 5% of the then-remaining balance as a penalty. Penalties shall be due prior to the next monthly payment. Husband incurring a penalty shall not suspend his obligation to make the regular monthly payments called for under this agreement and an additional 5% penalty (calculated as provided above) shall apply to the subsequent late payments. Payments shall be applied as follows: first to any penalties due, second to past due monthly payments, third to regular monthly payments, and fourth to prepayments. In the event Wife is required to sue to enforce Husband's obligations under this paragraph, in addition to any other rights and/or remedies provided elsewhere in this agreement, Husband shall be responsible for Wife's attorney fees and costs. Husband consents to the implementation of a wage attachment in the event that Wife is required to seek enforcement of this provision.
4. Husband shall submit the required forms relating to the La Cabana Beach and Racquet Timeshare to the timeshare company within thirty (30) days of the issuance of this Order. Husband shall also independently take any and all steps necessary to remove Wife's name from the timeshare property, including paying any fees and costs associated with this transfer and submit proof of this transfer to Wife's attorney within thirty (30) days of the issuance of this Order.
5. Husband shall transfer title and ownership of the 529 College Savings account for his son, J---, to Wife within thirty (30) days of the issuance of this Order. Husband shall also reimburse Wife for the full amount that Husband liquidated from this account within thirty (30) days of the issuance of this Order.
6. Pursuant to the agreement of the parties at paragraph 11(g) of their November 19, 2015 Stipulation and Order, this obligation is deemed a "domestic support obligation," as that
term is defined in 11 U.S.C. § 101(14A), rendering this judgment non-dischargeable in bankruptcy, pursuant to 11 U.S.C. §523(a)(5).
7. This Judgment may be recorded, docketed, indexed and/or filed, in any appropriate city, county, or state office in this State, where legal documents are usually received for recording, docketing, indexing and/or filing.
8. Wife's attorney shall submit an affidavit of fees and expenses within fifteen (15) days of the issuance of this Order to which Husband may respond to within fifteen (15) days thereafter.
IT IS SO ORDERED.
/s/ _________
ROBERT BURTON COONIN, JUDGE Date Mailed to Petitioner's Attorney: __________ Date Mailed to Respondent: __________ RBC/jr