Opinion
No. FA02-0730067-S
October 3, 2011
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR CONTEMPT (173) AND DEFENDANT'S MOTION FOR MODIFICATION (175)
At a hearing on September 29, 2011, the court heard testimony from the parties as to (i) plaintiff's claim that the defendant has willfully failed to comply with a valid court order; and (ii) defendant's request for a modification of the child support payable by him pursuant to the judgment of the court entered on September 20, 2002 dissolving the parties' marriage which judgment incorporated by reference a Separation Agreement (agreement) dated September 20, 2002.
After considering the credible evidence and the applicable statutory and case law, the court makes the following findings by a fair preponderance of the evidence and enters the following rulings, decisions and orders.
FACTUAL FINDINGS
The agreement provides in Section 8 thereof that the defendant husband shall pay child support in accordance with the Connecticut Child Support Guidelines. Said section provides further that the defendant is to pay 100% of (i) the "daycare costs for the minor child until he is 16 years until the parties agree the child is of sufficient maturity and no longer needs daycare supervision, whichever is earlier;" and (ii) any extracurricular activities for the minor child not exceeding four activities per calendar year. The minor child turned sixteen on July 14, 2010. There was no evidence that the parties agreed to a sooner termination of the daycare cost obligation due to the maturity of the child and, accordingly, the defendant's obligation to pay for child care costs ended on July 13, 2010.
The amount of the child support payment was not set forth in the agreement, however, the parties stipulated the amount of the child support payable by the defendant as of the date of the agreement was $774 a month. As shown on the defendant's financial affidavit dated as of the date of the agreement, his bi-weekly income was $2,150 and the plaintiff's financial affidavit reflected $0 in income.
The terms of the agreement have not been modified.
The plaintiff acknowledged the defendant was current with child support and with the payment of extracurricular and child care costs as of 2006; he brought his payments current at that time as a result of the plaintiff having filed a contempt motion which was resolved out of court. The court, accordingly, limited the plaintiff's motion for contempt to payments due from the defendant after 2006.
The plaintiff has gained employment since the dissolution, but on a very limited scale as she devotes her time and energy to the needs of the minor child of the marriage, Alexander (d/o/b July 14, 1994). The plaintiff presented much testimony as to Alexander having special needs. The defendant testified that Alexander has ADHD and an alcohol/substance abuse problem. The court finds based on the testimony that Alexander does have some special needs.
The defendant has been found by the St. Francis Behavioral Health group to be totally disabled as of January 2011, and the court credits the same. He is not eligible for unemployment due to his total disability. He has been denied Social Security Disability/SSI, but is currently appealing the decision.
He acknowledges that he ceased paying his child support in early 2011 after he stopped receiving wages from his employer, AT T. He was not forthcoming as to his receipt in January 2011 of a lump sum distribution from his retirement plan in the approximate amount of $117,000. He did not disclose the same as income to him. He testified that it was disclosed on his financial affidavit — it is not, as only the unspent balance of his distribution is shown as an asset in Section 4 of his financial statement. The court notes that pursuant to the definition of Gross Income in the Child Support and Arrearage Guidelines § 46b-215a-1(11)(A), deferred compensation and severance pay as well as pension and retirement income are included.
The defendant, in effect, argues that his failure to pay child support was not willful due to his lack of income.
He testified that he is paying $600 a month rent to his parents. His current financial statement, however, reflects that he is paying $75 a week for rent/mortgage which equates only to approximately $322 a month for rent.
The plaintiff in her motion claimed the defendant was in arrears in child support from 2007 through "present" (the motion is dated July 15, 2011) in the amount of $9,362. During her testimony she claimed he was in arrears in the amount of $12,384. The defendant acknowledges an arrearage for child support in the amount of $1,298.
The court has reviewed the evidence submitted by both parties and considered their testimony. The plaintiff's chart of arrearages indicates the defendant is in arrears in the amount of $2,596 for 2007. The court in reviewing the evidence submitted, cannot find the defendant has paid all twelve installments due for the 2007 calendar year. The court finds the defendant did not pay three months at $774 a month and paid $500 for one month (instead of the required $774 leaving a balance for that month of $274) for a total arrearage of $2,596 for 2007.
As for 2008, the court finds the defendant paid all of the monthly installments due for that year and, paid an additional sum of $474. The court subtracts the additional $474 paid in 2008 from the $2,596 due for 2007, resulting in a difference of $2,122.
There is no claim and no evidence that the defendant did not pay all of the child support due for 2009.
As for 2010, the court finds the defendant failed to pay two payments of child support for a total arrearage for that year of $1,548.
For 2011, the court finds the defendant paid two installments of child support which have been applied to January and February 2011 — leaving unpaid the months of March through September, i.e., seven months at $774 a month for an arrearage of $5,418.
Accordingly, the court finds an arrearage of $9,088 (the sum of $2,122 plus $1,548 and $5,418) in child support for the period of 2007 to the end of September 2011.
In her motion, the plaintiff further claimed the defendant failed to reimburse her for day care and extracurricular activities for the period of 2005 to 2006 in the amount of $751, but in her testimony she claimed he was in arrears for in the amount of $1,032.24 from 2006 to the present.
The plaintiff presented evidence in support of her motion related to payments she made for child care and extracurricular activity costs for the period 2004 through 2006. Yet, the plaintiff agreed the defendant was current through 2006 with respect to his obligation to reimburse her. Accordingly, the court finds the plaintiff has not met her burden to prove the defendant has willfully failed to comply with a valid court order with respect to her claim for reimbursement of child care and extracurricular activity costs.
Lastly, the plaintiff claims the defendant has failed to pay attorney fees, costs, fees, and interest she has incurred in connection with her previously filed contempt motions.
The defendant is seeking a modification in child support payments due to a lack of income as a consequence of his being out of work since September 2010.
II APPLICABLE LAW, ANALYSIS AND ADDITIONAL FINDINGS A. The plaintiff's motion for contempt
"In 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 (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). However, "even 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, 536 A.2d 985 (1988) (court still required to hold evidentiary hearing to support such orders); see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).
The court finds a valid court order requiring the defendant to pay child support. The court further finds the court order was not ambiguous in that it ordered payment in accordance with the child support guidelines — which were presented to the court as Exhibit 1. The parties further stipulated that the monthly amount of the order was $774.
The court finds the defendant had the ability to comply with court order. Although his wages ceased in late 2010 or early 2011, he received a lump sum payment of $117,000 in early 2011. He had the ability to pay child support and he failed to do so.
The court finds the defendant willfully failed to comply with a valid court order and grants the motion as it relates to child support. The defendant is in contempt for failure to comply with the order of the court.
The court does not find the defendant in contempt with respect to the plaintiff's claim that he willfully failed to reimburse her for child care and extracurricular activities costs.
The court further finds no basis for the plaintiff's claim that the defendant is in violation for failure to pay her attorneys fees, costs, fees and interest and accordingly that claim is denied.
B. The defendant's motion for modification
"The burden is on the party seeking modification to show the existence of a substantial change in circumstances." Jaser v. Jaser, 37 Conn.App. 194, 204 (1995); Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992); see also Walshon v. Walshon, 42 Conn.App. 651 (1996) (dismissing plaintiff's motion for modification for failure to make out a prima facie case of a material change in circumstances).
In considering the plaintiff's motion to modify the Agreement, the court has considered whether there had been a substantial change of circumstances.
The court finds the disability of the defendant and his resultant inability to work is a substantial change in circumstances.
He currently receives no wages, unemployment benefits or social security benefits.
He, however, received the lump sum retirement distribution which is income. Moreover, "lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate." Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004)." Milazzo-Panico v. Panico, 103 Conn.App. 464, 468 (2007).
"It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income . . ." Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007); Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).
The court accordingly attributes to the defendant at this time an earning capacity of $330 a week. Based on the Worksheet for the Connecticut Child Support and Arrearage Guidelines with the plaintiff's actual earnings of $123 a week and the $330 a week earnings attributed to the defendant, the court finds the presumptive amount of child support payable by the non-custodial parent, the defendant father, to be $75 a week.
The motion is granted. The court orders the child support payable by the defendant be modified to $75 a week until further order of the court or until such time as child support is no longer payable for the minor child in accordance with applicable law, whichever first occurs.
The court declines to order the adjustment in child support be retroactive to the date of service of the modification due to the defendant's earlier receipt of the $117,000 lump sum distribution and orders the child support at the modified amount of $75 be payable for the first week of October ending on Friday, October 7, 2011.
III ORDERS
1. The defendant is ordered to pay child support from and after October 1, 2011 at the rate of $75 per week.
2. The court finds an arrearage of child support in the amount of $9,088. The defendant shall pay $15 a week towards the arrearage for a total current child support payment of $90 a week.