Opinion
No. FA 02-0731839 S
November 2, 2009
MEMORANDUM OF DECISION MOTION NUMBERS 144, 146, 147, 148, 149 AND 155, POSTJUDGMENT
The plaintiff in this postjudgment dissolution action is Linn Maxwell, who has filed multiple motions for contempt. The defendant, Peter Maxwell, has filed a motion for contempt as well as a motion to modify child support. A hearing before the court was held on all motions, commencing on October 20, 2009 and continued to October 29, 2009. The court will begin with the defendant's motions; first to modify child support, No. 148, and then to his motion for contempt, No. 147, both filed on August 24, 2009. The court will then address the plaintiff's motions for contempt.
A. The Defendant's Motion to Modify
The parties agree to a retroactive modification of the original child support order of $292, but disagree as to the presumptive amount and any applicable deviation criteria found by the court under the facts of the case. The court accepts the plaintiff's presumptive amount of $163, as reflected in her child support guidelines worksheet. The court further finds the presumptive share of unreimbursed medical expense to be sixty percent attributable to the plaintiff and forty percent attributable to the defendant. As agreed to by the plaintiff, this reduced order shall be retroactive to April 23, 2009, which predates the filing date of the defendant's motion to modify.
In this case, the plaintiff certified that a mailed copy was sent to the defendant, but did not make service pursuant to General Statutes § 52-50. "General Statutes § 46b-86 requires that in order to modify the periodic payment of permanent alimony and support retroactively to the date a motion seeking modification was served on the opposing party, such service must be made pursuant to § 52-50 by a sheriff, a deputy sheriff, a constable or other proper statutorily authorized officer." Merely mailing a copy to opposing counsel or the opposing party, as was done here, does not, therefore, comply with § 52-50. Shedrick v. Shedrick, 32 Conn.App. 147, 151, 627 A.2d 1387 (1993). The court finds these requirements to have been waived by the plaintiff.
The defendant claims deviations from the presumptive amount based upon two deviation criteria 1) extraordinary educational expenses, and 2) shared custody. The court finds there is an extraordinary educational expense of approximately $45,000 per year associated with the minor child's attendance at the Kimball Union Academy. However, this educational expense is equally shared by the parties by accessing post-secondary educational funds, previously set aside at the time of the dissolution. For this reason, the court finds the deviation criteria inapplicable.
The defendant further claims a deviation based upon shared custody because the minor child is currently enrolled at a private boarding school. The court has been presented with no precedent for this claim and there is no motion to modify custody before the court. For these reasons, the court will not deviate from the presumptive child support found in this case based upon shared custody. Although the minor child spends significant time away from home at a boarding school, and this may result in a reduction in weekly food expenditures and other incidental costs, his primary residence, as between the parties, remains with the plaintiff.
B. Motions for Contempt
Connecticut procedure authorizes motions for contempt. See Connecticut Practice Book § 25-27. "To constitute contempt a parties' conduct must be wilful Noncompliance alone will not support a judgment of contempt." (Citation omitted; internal quotation marks omitted.) Detels v. Detels, 79 Conn.App. 467, 470, 830 A.2d 381 (2003). "The burden of establishing a prima facie showing of contempt . . . falls upon the [moving party]." (Footnote omitted; external citation omitted.) Lawson v. Lawson, Superior Court, judicial district of New Haven at New Haven, Docket No. FA00 0434443 (February 14, 2006, Dewey, J.).
Moving to the defendant's motion for contempt No. 148, filed on August 24, 2009, the court finds the plaintiff in violation of the dissolution decree, requiring certain funds from the equity in the marital home to be held for the post-secondary education of her children. The plaintiff removed $10,000 from this educational fund, held by UBS Financial Services (UBS), and used it for household expenses. The plaintiff claims that although she now recalls the dissolution order restricting these funds, entered by the court in 2003, she had forgotten the restriction at the time the funds were removed in 2007. Although it strains credulity to believe that the plaintiff did not recall that the funds were set aside for the education of her children, the court finds there is insufficient evidence to determine that she willfully and intentionally violated a court order, as required for contempt.
"In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order." (Emphasis in the original; citation omitted; internal quotation marks omitted.) Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994). Therefore, the court orders the plaintiff to remedy the violation by depositing $10,000 of her own funds into the UBS account within thirty days. If the plaintiff is unable to comply with the order within thirty days, the parties may return to court for further orders.
The court notes that the plaintiff's Financial affidavit shows only $3,400 in her TSA 403b Account and only $3,400 in her other bank accounts.
The court will move next to the plaintiff's motion for contempt No. 144, filed on July 10, 2009, concerning the defendant's failure to pay child support and alimony. The court finds that the defendant discontinued his payments of child support on his minor son's eighteenth birthday, in violation of the child support order. This child has nonetheless remained a full-time high school student under the age of nineteen, having repeated his junior year at Kimball Union Academy. Although the parties discussed the possibility of allowing their son to graduate from Kimball Union after one year and continue as a post-graduate student, he was enrolled as a junior and is currently registered as a senior for this academic year.
The court finds that the defendant has willfully and intentionally violated his child support order in this case. Although the defendant may have initially misunderstood the law in good faith, the plaintiff has informed him of his statutory obligation to pay child support until his child reaches the age of nineteen or completes high school, which ever occurs first. Similarly, although the defendant argues in good faith that deviation criteria may apply, he may not simply discontinue child support payments, assuming the law and reason to be on his side. The court therefore finds the arrearage owed is $3,401.
General Statutes § 46b-84(b) provides in relevant part: "If there is an unmarried child of the marriage who has attained the age of eighteen and is a full-time high school student, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first . . ."
In Sablosky v. Sablosky, 258 Conn. 713, 784 A.2d 890 (2001), the Supreme Court reiterated the rule that a party may not resort to "self-help . . . by disobeying the court's order without first seeking a modification . . ." (Internal quotation marks omitted) id. at 720, quoting Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). In Sablosky, the father had been ordered to provide financial support to his children while they remained undergraduate students. He was held in contempt of a support order when he stopped paying educational expenses after one child reduced her enrollment to part-time and the other delayed his expected graduation date beyond four years. Sablosky v. Sablosky, 61 Conn.App. 66, 68-69, 762 A.2d 922 (2000), rev'd, 258 Conn. 713, 784 A.2d 890 (2001). The father claimed that he had interpreted the order to mean that he was required to pay educational expenses only if his children were living on campus and enrolled in a full-time, four-year program, and that the support order was therefore ambiguous. Sablosky v. Sablosky, supra, 258 Conn. 716, 784 A.2d 890. Similarly, in Eldridge v. Eldridge, supra, 244 Conn. 533, a former husband was found in contempt when he stopped paying alimony in the belief that his former wife, who had failed to inform him that her earnings had increased, owed him a credit.
The Supreme Court's "decisions in Sablosky and Eldridge serve to enforce an important public policy against resorting to self-help tactics." In re Leah S., 284 Conn. 685, 699, 935 A.2d 1021 (2007). "A different conclusion would not only frustrate clearly defined public policy regarding the parental obligation to support minor children . . . but it also would encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments." (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, 258 Conn. 722, 784 A.2d 890. Stated more simply, court orders must be obeyed until modified or successfully challenged in a court of law. See Muholland v. Muholland, 229 Conn. 643, 649, 643 A.2d 246 (1994).
Moving next to the plaintiff's allegation of contempt for failing to pay alimony, the court finds the defendant to be in violation of his order of alimony in the amount of $1,400. This non compliance occurred at a time of unemployment and the court therefore finds it was not then an intentional and willful violation of the court order to pay $175 per week in alimony. This finding, however, is limited to the period of unemployment. Although the defendant has continued to pay alimony since his reemployment, he has refused to acknowledge or pay the arrearage. Moreover, instead of acknowledging the arrearage, he has scoffed at the idea of owing alimony during a period of unemployment, yet sought no modification of the order. Based upon these findings and the Muholland, Sablosky and Eldridge decisions, the court finds the defendant in contempt.
The court will next consider the plaintiff's allegation of contempt concerning the defendant's failure to insure his two children under his automobile policy. Although the plaintiff initially filed a motion for contempt, No. 146 on August 7, 2009, the court considers this motion too have been abandoned, having substituted the substance of this motion in her motion for contempt No. 149, filed on August 25, 2009.
In a stipulated order of the court, Solomon, J., dated December 22, 2006, the parties agreed to insure their two children on each of their automobile policies, with an "occasional driver designation." Although the defendant believes his children are insured under his automobile policy, he has provided no evidence of having obtained the specific insurance designation required by the court order. Therefore, the court finds the defendant not to be in compliance, but not in willful or intentional violation of the court order. The court requires the defendant to provide proof of compliance with the court order within thirty days. See Clement v. Clement, supra, 34 Conn.App. 647.
The court will now consider the plaintiff's final motion for contempt No. 155, filed on October 8, 2009. In a stipulated order of the court, Epstein, J., dated August 26, 2009, the parties agreed that the defendant would insure his life in the amount of $100,000, naming the plaintiff as the irrevocable primary beneficiary of the policy until his support obligations end. He has, instead, provided life insurance in the total amount of $150,000, with $75,000 for the benefit of his children and with only $75,000 for the benefit of the plaintiff. The court finds the defendant not in compliance, but not in willful or intentional violation of the court order. The court therefore requires the defendant to provide proof of compliance with the court order within thirty days. See Clement v. Clement, supra, 34 Conn.App. 647.
C. Attorneys Fees
The plaintiff seeks attorneys fees for the plaintiff's contempt of court orders. Our dissolution law clearly permits the trial court to award attorneys fees after a finding of contempt. General Statutes § 46b-87 provides in relevant part: "When any person is found in contempt of an order of the Superior Court entered under section . . . 46b-81 to 46b-83, inclusive . . . the court may award to the petitioner a reasonable attorneys fee . . ." "It is axiomatic, however, that the determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors, among which the time and labor expended is but one consideration . . . Moreover, because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant's behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award." Esposito v. Esposito, 71 Conn.App. 744, 749-50, 804 A.2d 846 (2002).
Both parties have been found by the court to be in significant noncompliance with court orders; however, only the defendant has been held in contempt for his failure to pay alimony and child support. He is now in contempt because he reasoned in good faith that the orders no longer were justified under the facts and circumstances presented, as he interpreted them. Once confronted with the law, however, he chose to ignore his responsibility to comply with the order until it was terminated or modified.
Under the circumstances of the case, the court has found the defendant in willful violation of court orders. Although his violations may have been based in reason, they are not supported by the law and so the court awards attorneys fees in the amount of $4,000. Although this figure is significantly less that the affidavit of attorneys fees presented, the court has considered the competing equities in this case. See Eldridge v. Eldridge, supra, 244 Conn. 534-35. Included in the court's consideration of the equities of the case is the fact that the plaintiff violated the court's order concerning the college fund, necessitating the defendant's motion for contempt, as well as the fact that the defendant is not in contempt on all motions prepared and brought by the plaintiff.
All arrearages, including attorneys fees shall be paid by the defendant within thirty days, so long as sufficient funds are lawfully available to him as a loan from his 401K account. If the defendant is unable to comply with this order within thirty days, the parties may return to court for further orders. Future child support and alimony payments shall be by automatic wage execution.