Opinion
WWMFA114012330
11-06-2015
Robert Noiseux v. Carolyn Noiseux
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward C. Graziani, Judge.
The plaintiff filed the following motions post judgment:
1. " OBJECTION TO SUPPORT ENFORCEMENT SERVICES CLAIM OF DELINQUENCY FOR CHILD SUPPORT AND ALIMONY DATED 2.20.2015 AND MOTION TO CORRECT/CLARIFY OR VACATE THE COURT ORDERS DATED 5.31.2013 #119. AND JUDGMENT DATE 3.2.12#110.00." (Motion #123)
2. " MOTION TO TERMINATE ALIMONY-POST JUDGMENT" (Motion #125)
3. " NOTICE AND CLAIM FORM SUPPORT INCOME WITHHOLDING" (Motion #120 and 135)
The defendant filed the following motion post judgment:
1. " MOTION FOR MODIFICATION" (Motion #130.00)
The court held an evidentiary hearing on September 22, 2015 on said motions. The parties were present during the hearing and each was represented by counsel. Testimony was received from the plaintiff and the defendant. Exhibits were introduced by the parties. Both parties also submitted financial affidavits. Both parties were given a period of two weeks after the trial to submit briefs and findings of fact with response briefs due one week thereafter.
From the testimony and evidence produced at the hearing and after assessing the credibility of the witnesses, the court finds the following facts to have been proven.
The parties were married on June 26, 1993. There were four children issue of the marriage, Robert born in 1993, Casey born in 1995, Emily born in 1996 and Riley born in 1999.
The marriage of the parties was dissolved on March 2, 2012 and the court entered the following orders in accordance with the agreement of the parties which are relevant to the current motions.
The court ordered joint custody of the minor children to the plaintiff and the defendant. Primary residence of Casey was ordered to be with the plaintiff and the primary residence of Emily and Riley was ordered with the defendant. A Parenting Plan was also agreed upon by the parties which was adopted by the court. The plaintiff was ordered to pay child support to the defendant in the amount of $308.00 per week. In addition, the plaintiff was ordered to pay alimony to the defendant the sum of $150.00 per week for up to nine years. As to uncovered medical costs, the court ordered the plaintiff to pay 75% of said expenses with the defendant paying 25% of said expenses.
On May 22, 2013, the court modified the child support that the plaintiff would pay to the defendant to $162.00 per week beginning May 31, 2013 and also ordered that unreimbursed health expenses shall be paid 67% by the plaintiff and 33% by the defendant said support and unreimbursed health expenses were in accordance with the child support guidelines.
On April 29, 2015 the judgment was further modified in regard to the minor child Riley providing for a referral to Family Relations, counseling for the child and the allocation of summer school expenses.
On September 22, 2015, the parties presented an agreement between the parties dated September 22, 2015 regarding the custody of the minor child providing in relevant part that the parties were to have joint custody with the primary residence with the defendant.
This court judgment addresses the issues presented to it at said hearing as follows.
1. UNREIMBURSED HEALTH EXPENSES
The plaintiff is seeking reimbursement from the defendant of unreimbursed health expenses.
The plaintiff introduced Exhibit A detailing the unreimbursed medical expenses due him from the defendant for the period of November 21, 2012 until September 11, 2015 in the amount of $298.84, said amount being the defendant's 33% of unreimbursed medical expenses.
The court notes that the defendant's share of the unreimbursed expense of November 21, 2012 for $10.00 should be computed at 25% and not 33% in accordance with the court order existing at the time the bill was incurred. Although plaintiff's Exhibit A, is his email to the defendant detailing his claim of umreimbursed medical expenses from her lists a column which indicates " Paid" his testimony before the court at the hearing was that the expenses were either paid or will be paid. He further testifies that he has not paid any unreimbursed medical expenses to the defendant as he never received a claim for said payments.
2. CHILD SUPPORT AND ALIMONY
The child Casey resided with the plaintiff father from the date of the Judgment of Dissolution of Marriage on March 2, 2012 until she was no longer a minor.
The child Emily resided with the defendant mother from the date of the Judgment of Dissolution of marriage on March 2, 2012 until she graduated from high school and enrolled in the United States Navy.
The child Riley lived with both the plaintiff father and the defendant mother multiple periods of times since the date of the Judgment. The primary residence of the child was ordered with the defendant mother at the time of the dissolution on March 2, 2012. At the hearing on September 22, 2015, the parties presented that the primary residence of the child Riley be with the defendant mother. Testimony was presented that the child had resided with the father during a period of time in 2013, as well as from July 18, 2014 to November 7, 2014.
As such the court grants a credit to the father for the period of July 18, 2014 until November 7, 2014 being 16 weeks of child support at $162.00 per week totaling the sum of $2, 592.00. The court does not order any additional credits to the father for child support.
The father did not file a motion to modify the last child support order of May 22, 2013 until he filed multiple motions in 2015. When the plaintiff filed his motion #113 for modification of the Judgment on March 21, 2012, he only requested a decrease in child support and did not request a modification of the custodial order. On May 22, 2013 the court modified the child support to $162.00 and the unreimbursed health expenses but kept all other orders in full force and effect.
The plaintiff submitted child support guidelines dated September 21, 2015 showing the presumptive support due from him to the defendant to be $248.00 per week with the plaintiff being responsible for 62% and the defendant being responsible for 38% of unreimbursed medical expenses. The defendant submitted child support guidelines dated May 28, 2015 showing the presumptive support due to the defendant from the plaintiff to be $255.00 per week with the plaintiff being responsible for 63% and the defendant being responsible for 37% of unreimbursed medical expenses.
The plaintiff submitted a financial affidavit dated September 22, 2015 asserting a gross income from employment of $2, 455.60 and additional income of $80.00 a week from rental and income producing property with a net income of $1, 407.30. He also lists ownership of seven different parcels of real estate. In addition, in his testimony he acknowledged neglecting to list an eighth parcel of real estate on his financial affidavit.
The defendant submitted a financial affidavit dated September 22, 2015 with the court showing a gross income of $833.00 with a net income of $655.00. She did not list any real estate.
The plaintiff testified that he believed his alimony order terminated immediately upon the remarriage of the defendant. Accordingly he stopped paying alimony when the defendant remarried in September 2012. The plaintiff did not file a request for the court to terminate the alimony until dated April 29, 2015. His motion was mailed to the defendant on said date. He also filed a motion dated April 7, 2015 objecting to the support enforcement claim of delinquency for child support and seeking to correct/clarify or vacate the court orders. He also filed a claim objecting to the Support Income Withholding dated July 21, 2015 and March 6, 2015.
The plaintiff's testimony as to his financial affidavit and his current financial condition was not credible. While he could document to the penny the unreimbursed medical expenses he claimed the defendant owed him over a period of almost three years, he was unable to provide details of his current wife's income being unsure of her income and was not forthcoming with the financial details of his rental properties. He ultimately testified that his current wife makes roughly less than half of what he earns. He addressed the income he received from his numerous rental properties with his assertion that he earned $80.00 a week based upon his accounting method. His testimony revealed that he has multiple rental properties and recently " technically" purchased additional real estate. His financial affidavit submitted at the hearing reflected ownership of seven pieces of real estate. He later admitted one property was left off of his financial affidavit. He received significant rental income from said properties but claims they are basically operated at a loss. When asked by his attorney " Why do you want all of these properties if you're operating at a loss?" He responded " If I do my job right at the end of the year I windup with a loss. If I break even or--make a profit I have to pay taxes on it." He is planning on ultimately selling the properties to make a profit. The plaintiff's financial affidavit of September 22, 2015 reflected additional real estate that was not listed on the March 2, 2012 financial affidavit that was filed at the time of his dissolution of marriage.
The plaintiff testified that he remarried since his dissolution and he currently resides with his new wife and two step children. His new wife is employed and he is not sure what she earns although she makes roughly half of what he earns. She also contributes to the household expenses.
When alimony was ordered pursuant to the agreement of the parties at the March 2, 2012 dissolution, the court canvassed the parties and specially asked the alimony award of $150.00 a week for nine years was modifiable as to both time and duration. The defendant said that it was, with no objection from the plaintiff. A review of the transcript of that hearing reveals no mention of the alimony terminating due to the remarriage of the defendant nor was it ever mentioned, by either party, that a remarriage of the defendant was contemplated.
The defendant remarried on or about September 21, 2012. The defendant had received alimony payments from the plaintiff until she remarried at which time they abruptly stopped. She learned of her ability to receive alimony payments despite her new marriage after meeting with Support Enforcement. At the present time, she is separated from her husband, plans to divorce, and aside from the child support she receives, no one is contributing to her support. She currently works as a dog groomer and also teaches dog grooming. She currently resides in a rented house. She testified that she cannot meet her expenses without child support and alimony.
Connecticut General Statute Section 46b-86(a) deals with the modification of alimony and support orders. It provides in relevant part that " Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . ." In addition said statute provides for the prohibition on retroactive modification except for any period in which there is a pending motion for modification of alimony from the date of service of notice of such pending motion upon the opposing party. An order for time-limited alimony has been construed as modifiable as to both amount and duration, should circumstances change during the specified time period. Scoville v. Scoville, 179 Conn. 277, 280, 426 A.2d 271 (1979). " If a court after hearing, finds that a substantial change in circumstances of either party has occurred, the court shall determine what modification of alimony, if any, is appropriate, considering the criteria set forth in section 46b-82." General Statutes Section 46b-86. In addition, under General Statutes Section 46b-86(b) . . ." In an action for . . . dissolution of marriage . . . in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other spouse, the Superior Court may, in its discretion . . . modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party."
The party seeking the modification bears the burden of demonstrating that such a change has occurred. Bunche v. Bunche, 180 Conn. 285, 290, 429 A.2d 874 (1983). In order for an order for periodic alimony to be nonmodifiable, the dissolution of marriage decree must contain language to that effect and such a preclusion of modification must be clear and unambiguous. Burke v. Burke, 94 Conn.App. 416, 892 A.2d 964.
" If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient's financial needs have been altered as a result of the cohabitation." Lehan v. Lehan 118 Conn.App. 685, 695, 985 A.2d 378 (2010). " Although the alternation need not be substantial . . . the difference must be measurable in some way before the court can conclude whether a difference, in fact exists . . . In other words, the court must have the ability to compare the plaintiff's financial needs at different points in time in order to determine whether those needs have increased or have decreased over time . . . [The proper way for the court to determine whether the [party's] financial needs have changed as a result of her cohabitation is to quantify her financial needs in terms of dollars during the period of cohabitation." Blum v. Blum, 109 Conn.App. 316, 951 A.2d 587, cert denied, 289 Conn. 929, 958 A.2d 157 (2008).
The wife's remarriage does not automatically terminate the periodic alimony obligation unless provided in the decree. Lasprogato v. Lasprogato, 127 Conn. 510, 515-16, 18 A.2d 353, (1941).
The alimony order that was entered at the time of the dissolution of marriage of the parties was the result of a written agreement between the parties. In addition, the court inquired of the parties to their intent as to whether the alimony ordered was modifiable as to term and amount which it was.
The court does not find that the judgment entered on March 2, 2012 should be vacated, corrected or clarified as requested by the plaintiff in his motion #123.00. The judgment of the court entered on March 2, 2012, in regard to alimony was not unclear, ambiguous, or the result of fraud, the result of duress or mistake. The parties intended the entry of the motion for alimony as presented to the court. The court confirmed that it was the intent of the parties that the order was modifiable as to both time and duration. There was no mention by anyone that it would be terminated automatically if the defendant remarried. The parties are not attorneys. If the parties had intended the termination of the alimony upon the remarriage of the defendant, they could have requested it. They did not. They did not discuss it with the court. Their intent was to enter an order for a period of nine years which order was modifiable as to both time and duration. That was accomplished and entered by the court at their request after an informed canvass which doesn't result in the termination of alimony of alimony upon marriage. The parties may not have understood the legal consequences of their agreement but did not understand the facts of their agreement.
A mutual mistake occurs when the parties to a contract are both mistaken about the same material fact within their contract. They are at cross-purposes. There is a meeting of the minds, but the parties are mistake. Hence the contract is voidable.
The plaintiff's request to terminate alimony is denied for the following reasons.
1. Connecticut General Statute Section 46b-86(a). No order for periodic payment of alimony may be subject to retroactive modification except during the period where there is a pending motion for modification from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50. Section 52-50 is the provision for the service of process by a state marshal, constable or other proper office. The motion filed to terminate the alimony post judgment filed by the plaintiff dated April 25, 2015, was not served in accordance with the statute but was mailed to the defendant, Support Enforcement and Weiss & Associates, LLC on April 29, 2015. Therefore, the motion has not been served in accordance with the statute and as such is denied.
2. Even if the motion to terminate alimony was served properly, a modification is allowed from the date of service of the motion and not retroactively. Section 46b-86(b) cohabitation is not marriage. The motion for modification was mailed on April 25, 2015. Accordingly, even if the motion was served in accordance with the statute, relief would only be available from that date and not retroactively. Moreover, as previously discussed a review of the financial condition of the parties, the testimony and evidence and applying the applicable statutes and case law does not support a modification of the alimony.
3. Even if the court were to find that the motion for modification of alimony falls under Section 46b-86(b) (the cohabitation section, ) the plaintiff has not met his burden of proof concerning the living arrangements of the and a change of circumstances altering the financial needs of that party.
While the court finds that there has been a substantial change in circumstances of the parties, with both remarrying after their dissolution of marriage, the court has insufficient information to determine to what extent the remarriage has impacted the parties' finances. There is a dearth of evidence dealing with the financial condition of the defendant as a result of her remarriage in September 21, 2012. The plaintiff did not file his motion to modify alimony until April 29, 2015, more than two and one-half years after the defendant remarried. He was aware of the fact that the defendant remarried but apparently and incorrectly believed that his alimony obligation automatically terminated upon that event. No evidence was presented that the defendant attempted to conceal her remarriage.
Accordingly, the court enters the following orders.
1. The court accepts the agreement of the parties dated September 22, 2015 in regard to the custody of the minor child Riley and modifies the previous orders of the court in accordance with said agreement which among other provisions provides that the parent shall be awarded joint custody of said child with the primary residence with the defendant mother. A copy of said agreement is attached hereto.[*] (Motion #130.)
2. The plaintiff shall make child support payments to the defendant for the benefit of the minor child in the amount of $250.00 per week, by immediate wage execution said sum being substantially in accordance with the Connecticut Child Support Guidelines, the plaintiff shall pay 62% and the defendant shall pay 38% of unreimbursed medical expenses substantially in accordance with the Connecticut Child Support Guidelines. The provisions of Connecticut General Statute Section 46b-84(b) shall apply.
Said support payments of $250.00 are retroactive to May 20, 2015. For the period of May 20, 2015 until the date of this Judgment.
The plaintiff is entitled to a credit in the amount of $2, 592.00 representing 16 weeks of child support at $162.00 per week for the period of July 18, 2014 until November 7, 2014 when the child Riley was residing with the father. (Motions #123, 130.)
3. The plaintiff's motion to terminate alimony is hereby denied. (Motion #125). As such the plaintiff owes the defendant alimony of $150.00 per week from the date of his last payment for the period of September 21, 2012 until the present time and the alimony obligation continues to remain in full force and effect pursuant to the terms of the judgment.
4. The previous orders of Support Enforcement orders dated 2-23-15 (Motion #120) and July 20, 2015 (Motion #135) are hereby ordered to be modified in accordance with this Judgment to reflect the orders entered herein. Child support shall be $250.00 per week and alimony is $150.00 per week and the arrearage shall be paid at the rate of $150.00 per week. An immediate wage execution shall issue for the payment of said alimony, child support and arrearage payments. The amount owed by the plaintiff to the defendant shall be subject to any credits for payments previously made by him and the credits entered under this order for child support.
5. The court orders the defendant to pay to the plaintiff her 33% or 25% share as the case may be of the past unreimbursed medical bills as detailed in plaintiff's exhibit A only upon proof of the payment submitted to the defendant by the plaintiff of payment of any unreimbursed bill by the plaintiff. Upon the defendant receiving proof of payment of said amounts, the defendant shall reimburse the plaintiff within 30 days. The court orders the plaintiff to pay to the defendant within 30 days the plaintiff's applicable share of any unreimbursed medical bills presented to the plaintiff that she has paid for the benefit of the minor child provided she submits proof of payment. Upon the plaintiff receiving proof payment of any bill, he shall reimburse the defendant within 30 days. (Motion #123.)
6. The plaintiff's motion to correct/clarify or vacate the court order of May 12, 2013 is hereby denied. (Motions #123, 125.)
[*]Editor's Note: The referenced attachment has not been included with the reported opinion.