Opinion
No. FA 95-0710025-S
November 17, 2011
MEMORANDUM OF DECISION
The parties' marriage was dissolved on May 14, 1997. The judgment incorporated by reference an Agreement and Stipulation dated May 14, 1997 (the agreement). Paragraph 3.K. of the agreement provides that neither party shall move from their current residence without providing the other parent with at least ninety days prior written notice. Paragraph 5 of the agreement provides, in part, that the "parties shall share in special substantial expenses of the child, such as summer camp and foreign or special travel programs." Paragraph 6.A. of the agreement provides that both parties are to maintain medical/dental insurance as available through their employment for the benefit of their minor child and to share equally the amount of any unreimbursed medical expenses.
The parties entered into, among other agreements modifying the parenting plan, a Post-Judgment Parenting Agreement dated May 28, 2002 which was approved and ordered by the court, Pickard J., on June 12, 2002 (191.10). Paragraph 9 of such agreement provided that the child should attend The Renbrook School and the plaintiff would be responsible for one-third and the defendant responsible for two-thirds of the tuition, fees and any extraordinary school-related activities including sports; the defendant was to pay the costs of books. The same paragraph provided further that "all costs shall be split fifty/fifty from sixth grade through high school." Paragraph 13 of the postjudgment agreement required each party to keep the other informed of all current cellular, land and work telephone numbers at all times.
On August 26, 2010, the court, Dolan J., granted a Motion for Order re Educational Placement, Post-Judgment, pursuant to which Amara was to continue to attend Miss Porter's School and to board at the school to remove her from the continued acrimony of her parents (238).
On August 5, 2011, the plaintiff filed a Motion for Contempt dated July 15, 2011 (245).
When an allegation of contempt is made our courts have noted that "[i]n a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, (2001). A finding of contempt cannot be based on an order that is vague and indefinite. Wilson v. Wilson, 38 Conn.App. 263, 271 (1995). "The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind." Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). "Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 14 (2001). "[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, supra, 38 Conn.App. 275-76; Niles v. Niles, 9 Conn.App. 240, 253-54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).
The plaintiff claims the defendant is in contempt for a myriad of reasons which the court will address in seriatim. All factual findings made herein are made by a fair preponderance of the evidence.
In the first instance, it is clear, and unfortunate, that the animosity between the parties negatively impacts their ability to co-parent the minor child Amara. The defendant, having voluntarily surrendered his medical license in Massachusetts, is currently working in a state that will continue to allow him to practice pending the results of his hearing in Massachusetts; he is now working in New York. Since June 2010 he has maintained more than one temporary residence in New York and he has not kept the plaintiff advised of his varying residence addresses. The defendant continues to maintain as his primary residence his home in West Hartford, Connecticut, however, he does not, for an inexplicable reason, always receive mail that is sent to that address. The court finds the defendant has gone to considerable effort to prevent the plaintiff from having contact with him by phone and mail delivery. He claims he does not owe money to the plaintiff because he did not receive any notice of her claims until she filed the motion for contempt. The court is not convinced.
The plaintiff did not allege in her motion that the defendant was in contempt of the orders of the court with respect to his failure to comply with the agreement and the postjudgment parenting agreement by reason of his failure to give her notice of a change of residence and/or to keep her informed of all of his various telephone numbers. The court has addressed the same because the defendant's actions have made it exceedingly difficult for the plaintiff to maintain contact with him to discuss parenting issues that involve their daughter.
His actions have prevented the plaintiff from proving that she provided to the defendant information sufficient for him to know what he owed to her for his share of unreimbursed medical expenses and the cost of tuition, camps, summer activities, text books and the like and she was unable therefore to prove his failure to pay the expenses was willful.
The court accordingly does not find the defendant to be in contempt.
The court finds, however, that the defendant failed to act reasonably in his refusal to permit the plaintiff to communicate with him with respect to the funds for which she is seeking reimbursement; the court finds it would be inequitable for the defendant to so shirk his duties to share in the cost of raising Amara.
"[E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367 (1988); see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).
The court, in the exercise of its remedial discretion hereby orders the reimbursement by the defendant of the following expenses and addresses the other claims the plaintiff has made in her motion for contempt.
A. A claim for failure of the defendant to maintain medical insurance and for reimbursement of the balance due on medical bills after the application of insurance paymentsThe defendant's position at the hospital in New York is a per diem position and he is not eligible for health insurance through his employer. The terms of the agreement require the parties to provide health insurance for Amara through their respective employer. The court does not find the defendant in contempt for failing to provide medical insurance for the child.
The plaintiff has proven that the sum of $598.56 of unreimbursed medical expenses has been incurred for the minor child. The defendant is responsible for one-half of that amount, or $299.28. The court denies the request of the plaintiff that the defendant be responsible for the entire unreimbursed medical expense due to his failure to maintain health insurance; as found above, he is not in contempt for failure to carry such insurance as it is not offered to him through his employer.
B. Pay miscellaneous school expenses; and C. Pay balance due by defendant of school tuition for 2010-2011
(i) The plaintiff was seeking to have the defendant declared to be in contempt for his failure to pay one-half of the cost of music lessons and athletic supply costs paid by the plaintiff. The costs for musical lessons and athletic supplies are included in the bills provided by Miss Porter's School. The court cannot ascertain from the account submitted as Exhibit 1 how the payments made by the parties were applied by the school. It is clear that there was a balance of $3,904.47 due to the school as of June 23, 2011, but it is not clear that the same is as a result of the defendant's failure to pay for one-half of the music lessons and athletic supply costs.
The plaintiff did not substantiate her claim that she paid for the entirety of the music lessons and the costs of the athletic supplies and therefore did not prove the defendant owes her one-half of the cost of the same.
(ii) As to funds advanced by the plaintiff to fund the Daisy/Ivy account at school, the defendant has taken the position that the child support he pays is intended to cover the cost of the items the child purchases using such account — such as snacks, chapstick, eraser stick, Porter Card, lanyard, pen and flash cards. The court agrees with that assertion.
The court finds, however, that the following items purchased through the Daisy/Ivy account are to be shared equally by the parties as a school-related expense: 9/2/10 chemistry manual and labs for $24.91 and 9/14/10 verb blank Spanish/French for $5.99; 10/21/10 PSAT for $17.00 and 10/5/10 misc. English field trip for $21.26; and 11/5/10 for a vaccine at $28.00. The total of such expenses is $97.16 and the defendant's share thereof is $48.58.
(iii) During her testimony, the plaintiff also sought reimbursement for Daisy/Ivy expenses for September 2011 through October 2011 — however such claims were not included in the motion and so are not properly before the court.
(iv) Further, the plaintiff sought reimbursement for the defendant's share of the increase in the tuition deposit the parties paid for a day student over the amount of the tuition deposit due for a boarding student. The plaintiff did not include such a claim in her motion and accordingly the court will not address the same.
(v) The plaintiff sought reimbursement of one-half of the cost of the school ring and for a replacement ring when Amara lost the first ring. Although the purchase of a school ring was a special request by the child and meaningful to her, it does not fall within the parameters of the types of extracurricular activities or educational programs outlined in the applicable section of the judgment and the court is not ordering reimbursement for the cost thereof.
(vi) The plaintiff further sought reimbursement for an essay writing course, graphing calculator and Microsoft Office Software. The credible evidence is that those expenses were incurred after July 15, 2011 and therefore are not included in her motion as a part of extracurricular costs payable by the defendant.
(vii) Similarly, the plaintiff sought reimbursement for dormitory supplies purchased after July 15, 2011; those items are not thus included in her motion and the court will not address the same.
D. Pay half of summer camp/activities for 2010; and E. Pay half of summer activities for 2011
Paragraph 5 of the agreement provides the parties are to consult with each other and with the child regarding education or training, with respect to such basic decisions as to the type of education or training, attendance at certain institutions and expenses. The agreement provides the parties are to share in the special substantial expenses of Amara's attendance at "summer camp and foreign or special travel programs." The sentence requiring a sharing of the special substantial expenses was clearly an add-on to the paragraph and it does not, by itself, require the parties to consult one another before such expenses are incurred. The court finds, however, that reading the paragraph as one integrated section, fairness and equity require the interpretation of the agreement to require the parties to consult one another on matters giving rise to a "special substantial expense" which is to be shared as it related to the education and training of Amara. See Nelson v. Nelson, 13 Conn.App. 355 (1988), for the proposition that between two possible interpretations of a contract or agreement, courts prefer the more equitable and rational interpretation.
The court finds the use of the word training to be a bit extraordinary, but interprets it to mean the preparation of Amara to lead a full and well rounded life.
In the summer of 2010 Amara attended Cheerio Adventure in North Carolina at a cost of $1,904 together with airfare of $342.52 and related supplies having a total cost of $824.52. The evidence for the supplies consists of a packing list and items purchased at various retail facilities, including clothing, active wear, and toiletries. In addition, the receipts reflect the expenditure of $78.58 for water shoes, $24.95 for a pocket knife, and $88.00 for hiking shoes. The credible evidence was that Amara has attended Cheerio camp in the past.
Amara also attended Monadnock bible school in the summer of 2010 at a cost of $370. The information for the camp submitted as a part of Exhibit 10 indicates that it was not the first time Amara has attended this camp.
As to the claim for summer 2011, Amara again attended Monadnock at a cost of $339.
In the summer of 2011 Amara also went on a mission trip, a ministry of the First Baptist Church, to the Dominican Republic at a cost of $1,300.
As to the costs of Cheerio Adventure, the court finds the expense was not unexpected nor unwelcome by the defendant as he had contributed to the same in the past. To avoid paying his share of the cost in 2010 and 2011 would be inequitable and inappropriate. The court finds the costs in the amount of $1,904 for the camp and $342.52 for the airfare are to be shared by the defendant for a total of $2,246.52 and his share thereof is $1,123.26. Of the expenses for supplies, the court finds the majority of the expenses for supplies to be more properly akin to costs of clothing and household items which are payable from child support. The extraordinary costs for the camp as shown on the receipts submitted as evidence are the $78.58 for water shoes, $24.95 for a pocket knife; and $88.00 for hiking shoes for a total of $191.52 of which the defendant's share is equal to $95.77.
As for the Monadnock bible camp in 2010 and 2011, the court also finds that Amara had attended the camp in the past and therefore it is equitable and appropriate for the defendant to pay his share. The total for the two years of such camp paid by the plaintiff is $709 and the defendant's share thereof is $354.50.
The defendant claims he was unaware of Amara's attendance on the trip to the Dominican Republic and the plaintiff acknowledged not consulting with him about the trip.
The court finds that the agreement contemplated the parties consulting one and another with respect to educational and training matters and the court finds the trip to the Dominican Republic is of such a substantial expense that the defendant should have been consulted before being expected to contribute to the same. The amount of the trip required the plaintiff to make an effort to communicate with him before incurring the expense. The court denies the request for the defendant to share in the cost of the mission trip to the Dominican Republic.
F. Pay half of school texts/books for 2009, 2010 and 2011
The school text books are not included in the tuition. The defendant's testimony that he thought they were included was simply not credible.
The court finds the plaintiff expended $696.62 for books for the 2009-2010 school year and $179.16 for the 2010-2011 school year. The defendant is responsible for one-half of the cost thereof in the amount of $437.89.
During her testimony the plaintiff further sought reimbursement for the cost of books for the 2011-2012 school year, but she did not include the same in her motion and the court will not address the same.
G. Request for wage withholding for child support
The credible evidence is the defendant does not always timely pay his child support. The court grants the request of immediate wage withholding and orders the defendant to cooperate to effectuate the same. The defendant is to continue to timely pay child support until the wage withholding goes into effect.
ORDERS
The court denies the motion for contempt.
The court, pursuant to its discretionary authority, orders the defendant to pay the plaintiff the sum of $2,359.28 ($299.28 for the unreimbursed medical expenses; $48.58 for the Daisy/Ivy account expenses related to education; $1,123.26 for Cheerio Adventure; $95.77 for extraordinary supplies to attend Cheerio Adventure; $354.50 for Monadnock bible camp; and $437.89 for books) to make the plaintiff whole for the foregoing activities, camps, educational expenses and programs as approved by the court and outlined above. Payment is to be made as follows: the sum of $790 is due on or before December 20, 2011, the sum of $790 is due on or before January 20, 2012 and the balance of $779.28 is due on or before February 20, 2012.
The court orders immediate wage withholding for the child support payable in the amount of $585 per month.
Further, the court orders the parties to keep the other informed of their respective permanent and temporary residence addresses as well as all land line, cellular and work telephone numbers. The parties are not to call the other at work for any reason other than an emergency involving Amara.