Opinion
No. FA 89-0279189S
August 23, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO OPEN AND SET ASIDE (#128) AND PLAINTIFF'S MOTION FOR CONTEMPT (#129)
Pending before the court are the defendant's motion to open and set aside an order of child support entered earlier this year (on February 3, 2005), pursuant to a written agreement of the parties and plaintiff's motion claiming that defendant is in contempt because of not paying court-ordered child support. The parties appeared with counsel for hearing on these motions on two days in June and July of this year. For the following reasons, defendant's motion is granted and plaintiff's is denied.
The background of this case is a 1995 modification of the 1990 dissolution judgment. The original judgment awarded the mother physical custody of the parties' minor child, Jamey, and ordered the father to pay $100 per week in child support. In 1995, the court modified that order, by agreement of the parties, and ordered exactly the opposite: Jamey would reside with his father and his mother would pay $100 per week in child support. That order remained in effect until February of this year, when physical custody was ordered to the mother and the father was ordered to pay child support of $161 per week (an amount in accord with the presumptive child support amount calculated based on the financial affidavits each party then submitted). During the ten-year intervening period, however, the parties on their own changed Jamey's physical residence and agreed to vary the support payments from the 1995 order. In 1997, Jamey went back to live with his mother, and the parties agreed that she would no longer pay $100 per week in child support and that the father would do so instead. The mother paid child support of $100 per week until then, and after that the father did so.
In May 2002, Jamey went to live with his paternal grandparents, and the parties each then agreed to pay $50 per week into a fund that the father would hold for Jamey's benefit. The father regularly put $50 into that account, but the mother did not. She made one deposit of $700, but she CT Page 11738-ea was unable to make direct deposits into the account because her name was not on the account. At the hearing on this matter she presented evidence, however, that while Jamey lived with his grandparents she spent significantly more than $4,000 on allowances, school lunches, school clubs, clothing, and music lessons on her son. When Jamey went back to living full-time with his mother in the summer of 2004, the parties again agreed that the father would pay the mother $100 per week in child support.
The February 2005 order modifying child support was the result of a motion served by the mother on the father in January 2005 to modify child support. The financial affidavit filed by the father in January 2005, using the standard form JD-FM-6, stated that his net weekly income was $1,079.37 gross and $846.65 net. The form specifically provides: "Use weekly average not less than 13 weeks." The mother relied upon that affidavit in agreeing to an order for him to pay $161 in weekly child support, as must have the court, Harleston, J., in approving that sum as the presumptive amount pursuant to the child support guidelines. This amount was not the 13-week average, however. His 13-week average income would have been significantly larger than he stated on his financial affidavit, more than $1,500 per week instead of the $1,079.37 per week that he stated on his financial affidavit. Because he anticipated significantly less overtime work in 2005 than during 2004, the father instead listed his average income for three weeks of work during 2005.
On these facts the mother has moved to open the February 2005 order on the grounds of misrepresentation and fraud. A court may open a judgment obtained by fraud, including fraudulent nondisclosure. Pospisil v. Pospisil, 59 Conn.App. 446, 449-50, 757 A.2d 655, cert. denied, 254 Conn. 940, 761 A.2d 762 (2000). The well-known standard for proving any fraud claim is clear and convincing evidence; Alaimo v. Royer, 188 Conn. 36, 39 (1922); but negligent misrepresentation merely requires proof by a preponderance of the evidence. Rego v. Connecticut Insurance Placement Facility, 22 Conn.App. 428, 430 (1990), reversed on other grounds, 219 Conn. 339 (1991); Calabro v. Calabro, 33 Conn.App. 842, 846 (1994).
It is not clear that the father specifically intended to mislead the mother. The court finds persuasive his testimony that he believed the average of his wages for the previous 13 weeks was not representative of his anticipated earnings for 2005 and that he then believed his first 3 weeks of 2005 were more accurate indicators of his expected income for this year. Unfortunately, however, he failed to disclose the fact that his financial affidavit was not based on the last 13 weeks. His nondisclosure had the effect of misleading the mother to her prejudice. CT Page 11738-eb The presumptive support amount, based on an average weekly income of $1,503 for the father, would have been for him to pay $255 per week, not the $161 figure the parties agreed to. Under the child support guidelines, a child support award must be based on a party's present actual income; Regs. Conn. State Agencies, §§ 46b-215a-2a(c) and (d); unless the court deviates because of earning capacity or other permitted basis. The father would have had to prove that his 13-week average was not representative of his present income, and his failure to disclose that his affidavit only reported the 3-week average prevented the mother from having the opportunity to persuade the court to adopt the 13-week average.
The duty to disclose known facts is imposed on a party "insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak." Franchey v. Hannes, 152 Conn. 372, 379 (1965). "A misrepresentation stating the truth as far as it goes but which the maker knows, or ought to know, to be materially misleading because of its failure to state additional or qualifying matter is a fraudulent misrepresentation." 3 Restatement (Second) Torts, § 529. "[A] statement containing a half-truth may be as misleading as a statement wholly false." Id., comment (a). "Whether a partial disclosure of the facts is a fraudulent misrepresentation depends upon whether the person making the statement knows or believes the undisclosed facts might affect the recipient's conduct in the transaction at hand." Id., Comment (b). For a negligent misrepresentation by nondisclosure, such as occurred here, there is no requirement of an improper motive or intent to deceive. Johnson v. Healy, 176 Conn. 97, 101 (1978).
The test of negligent misrepresentation involves the breach of a duty to exercise reasonable care in communicating information upon which another may reasonably be expected to rely in conducting their affairs. Under this principle, one making a representation or communication to such another person may even believe [the] representation or communication to be true, but because of his lack of reasonable care in making that representation or communication it is in fact false . . .
Coburn v. Lenox Homes, Inc., 173 Conn. 567, 575-76 (1977).
The defendant has proven that the plaintiff misrepresented the basis for calculating the weekly income figures he listed on his January 2005 financial CT Page 11738-ec affidavit. He had a duty to disclose that the weekly income he listed on the financial affidavit did not represent the last 13 weeks but instead only the last 3 weeks. He should have expected the defendant to rely on his representation that the income figures he listed represented the last 13 weeks. His failure to disclose the true basis for his income figures caused the defendant to be mistaken in material facts — namely his income for the last thirteen weeks, and she reasonably and justifiably relied on plaintiff's representation that the income figures he listed were 13-week averages, to her detriment. The court thus opens the February child support order. The evidence offered at the hearing showed that plaintiff has earned an average gross weekly income this year of $1,412.32. The presumptive support amount under the child support guidelines effect at the time of the hearing would be for him to pay $175 per week. The defendant seeks an upward deviation because she claims that, since the plaintiff does not visit with Jamey, she has greater expenses to care for him than if he exercised the "typical visitation" of alternating weekends. The court does not find, however, that defendant has proven that it would be inequitable to order the presumptive amount. The court thus orders that he pay child support of $175 per week for current child support.
The court recognizes that the newly-revised child support guidelines, effective August first, have different rules regarding how overtime income and other matters are treated. Should plaintiff claim that the new guidelines would result in a different presumptive amount than found by the court, he may seek to open the evidence.
The original judgment provided that plaintiff would provide health care insurance for Jamey and that defendant would be responsible for all of their child's unreimbursed health care expenses. A child support order, however, must also include a component regarding unreimbursed medical expenses. Regs., Conn. State Agen., § 46b-215a-2b(g). Plaintiff is ordered to pay 38% of unreimbursed medical expenses. The order regarding child support and unreimbursed medical expenses are ordered effective retroactive to January 15, 2005, the date upon which plaintiff was served with defendant's motion to modify child support. He owes her 31 weeks of child support as of August 20, 2005, or an arrearage of $5,425, which he is ordered to pay at the rate of $35 per week.
The defendant claims that she is owed an arrearage for unpaid child support since July 2004. The order then in effect, however, was that she would pay child support to plaintiff. Her claim for arrearage seeks to effectuate the oral agreement of the parties that defendant would pay child support after Jamey resumed living with the plaintiff. That agreement was not a court order, however, and the court declines to convert it to one now. Under § 46b-86(a) of the General Statutes, "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 an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50."
The plaintiff's motion claims that defendant should be held in contempt for not paying the court-ordered child CT Page 11738-ed support of $100 per week. He does not seek an arrearage for the times that Jamey lived with his mother, but does for the time that Jamey lived with his paternal grandparents. The court declines to hold defendant in contempt for two reasons, however. First, plaintiff himself has unclean hands. He who seeks equity must first do equity himself. The plaintiff used his contribution to Jamey's account for his own benefit, yet claims that the defendant's failure to contribute should cause her to be held in contempt.
[W]here a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked.
(Citation omitted; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 334-35, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). Here, although plaintiff contributed $50 per week to an account in Jamey's and his name, he has since spent the money in that account on a Florida home for his present wife and their family. Some of the funds in that account were contributions made by the defendant. Although he claims he can always come up with the funds owed Jamey by taking out a home equity loan or line of credit, defendant could do the same.
Secondly, the defendant made substantial in-kind payments for Jamey while he lived with his grandparents that mitigate against any finding of wilful noncompliance with the court order and offset any claim of arrearage for that time period.
ORDERS CT Page 11738-ee
The defendant mother's motion to modify to child support is thus GRANTED, retroactive to January 15, 2005. Plaintiff is ordered to pay current child support of $175 per week, plus $35 per week toward an arrearage of $5,425, along with 38% of unreimbursed medical expenses, The plaintiff father's motion for contempt is DENIED.
BY THE COURT
STEPHEN F. FRAZZINI
JUDGE OF THE SUPERIOR COURT