Opinion
No. FA94-0122885S
March 6, 2007
MEMORANDUM OF DECISION AND ORDER RE PETITIONER'S MOTION FOR CONTEMPT FOR NON-PAYMENT OF UNREIMBURSED MEDICAL EXPENSES
The parties appeared before this court on November 6, 2006 in a hearing on the petitioner/mother's application dated May 16, 2006, for an order holding the respondent/father, Steven Smead, Jr., in contempt of this court for failure to pay $7,305.21, which is one-half share of accumulated unreimbursed medical and dental expenses for the parties' three minor children, pursuant to court order of April 12, 1996.
The court advised the respondent that he could face the risk of incarceration if found in contempt and was given the opportunity to request time to obtain counsel. According to his own testimony, he is not indigent. He stated that he would represent himself. He did so freely, without apparent uncertainty and after being made aware of the potential risk.
The petitioner offered into evidence (Plaintiff's Exhibit A) an inch-thick sheaf of photocopies of invoices and receipts for pharmaceutical prescriptions and dental, orthopedic, laboratory, physician, orthodontic and child guidance services provided to the then minor children of the parties, Steven, Kimberly and Jeffrey. The documentation demonstrated that these services were provided between April 4, 1994 and November 15, 2004. The petitioner submitted tabulations and testified that the 50% share was $7,305.21 as of May 15, 2006. Subsequently, she added invoices in groups totaling $502.88, $75.30 and $254.34, for a total of $8,137.73 as of the date of hearing.
The respondent did not object to the admission of the documents nor criticize the petitioner's calculations. Nor did he object to proceeding on the additional invoices. He objected to no specific bill or invoice, offered no alternative calculations, and made no claim that he is unable to pay. He has questioned or challenged none of the items as unreasonable or unnecessary for the health care of the children.
The respondent defended his failure to pay on only one ground, which he expressed in several ways: first, that the petitioner waited too long to present them for payment, which would have given him more time to pay them, especially by her failure to do so when the support orders were modified downward in 2002 upon the occasion of the emancipation of the twins; second, that he had medical coverage for the children until some unspecified date in 2001 but could not afford it after he changed jobs and that her failure to present the bills before then somehow harmed him; and, third, that she did not consult him about the timing and other specifics of the children's health care, specifically failing to wait for employment negotiations at his new employer to secure dental coverage before proceeding with orthodontic work.
The court infers that the respondent is attempting to raise defenses in the nature of waiver, estoppel or laches. If so, his effort has been unsuccessful. He has established none of the elements of any of these concepts except for delay, which this court finds was not unreasonable under the circumstances. He has shown no prejudice to himself. There was no promise or conduct leading to any detrimental reliance by the respondent. There was no showing that his circumstances had changed during the delay in any way which renders it inequitable to enforce the order against him now.
"Waiver is the intentional relinquishment of a known right . . . Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so . . . In the present case, little if any evidence of waiver was presented at the contempt hearing. On that basis, we conclude that it would not have been reasonable to infer waiver from the circumstances. Accordingly, the evidence is sufficient to support the court's conclusion that the defendant failed to prove waiver." (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn.App. 408, 414, 805 A.2d 745 (2002).
"Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief, and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done." (Citations omitted; internal quotation marks omitted.) Emerick v. Emerick, 28 Conn.App. 794, 802-03, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).
"Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . Even if we assume arguendo that the plaintiff delayed in filing her second motion for contempt and that the delay was inexcusable, the record still does not contain any evidence that the defendant would have been in a more advantageous position had the plaintiff filed her motion earlier. Absent a showing of prejudice, we conclude that the evidence is sufficient to support the court's conclusion that the defendant failed to prove laches." (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn.App. 408, 413-14, 805 A.2d 745 (2002).
He has shown no harm to himself except the accumulation of a larger amount in total than would have been the case if each bill had been submitted contemporaneously with its receipt. The petitioner has waited until all of the respondent's current support orders and arrearages have terminated or been paid off. Given his testimony that he has continued in the same work with the same employer ever since the 2002 modification, his capacity to pay medical reimbursement is greater now than at any time prior to the emancipation of the third child in July 2005. The respondent has benefited from the petitioner's decision to defer pursuing reimbursement of these costs, which she testified she has paid in full herself. The respondent has, further, made no payment since being presented with the great bulk of the claims in September 2005, more than 13 months prior to the hearing.
The petitioner presented competent evidence that the amounts claimed are the respondent's share of uninsured medical expenses incurred on behalf of the parties' three children, that she had presented most of the charges (at least the original $7,305.21) to the respondent on or before September 19, 2005, and that he paid nothing toward his obligation by the hearing date. She explained that, after the original order was entered, she began presenting bills to the respondent, concurrently with receiving them, when he picked up the children for visitation, but stopped doing so because of his angry reaction, including swearing at her and making derogatory comments about it to the children during the visitation. She raised the issue again following the 2002 modification of the respondent's weekly order downward to $110 per week, but, again, he resisted paying. Given his anger at being asked to pay anything more than the current weekly support order, she stated that she decided to defer pursuing reimbursement for uninsured medical expenses until the third child was emancipated and the respondent's current support obligation ended.
She testified that she took full advantage of whatever medical coverage the respondent provided. In 2001, by his own testimony, he changed jobs and discontinued carrying medical coverage for the children because it was too expensive if purchased through his new employer. The petitioner then arranged for the children to be covered by the Connecticut Husky program, in which they were enrolled thereafter, providing coverage very similar to that of the respondent's insurance.
The respondent's objections are unspecific and undocumented. He offered no evidence that any particular amounts, dates or services would have been covered by his pre-2000 health insurance. He offered no proof that he was prejudiced in any way by the petitioner's accumulation of bills for presentation after the children were grown. Moreover, he presumably benefited from an interest-free extension of time to pay until September 19, 2005, and continuing until the date of hearing.
He testified that he would have paid the medical costs before this court promptly if they had been presented as they were incurred, instead of being accumulated. "It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981)." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). The respondent's testimony is not credible in light of his failure to pay anything since being presented with these bills in September 2005, by which time he was no longer obligated to make current support or arrearage payments, and following which he had full discretion and flexibility to schedule payments prior to the May 2006 contempt citation and, thereafter, between May 2006 and the November 6 hearing. His representation is further incredible in light of his failure to make any payment toward any of the bills the petitioner credibly testified to having submitted as they were rendered over a period of time following entry of the original 1996 order.
The court finds the petitioner's explanation that the respondent resisted paying any such expenses in years past and reacted badly to being asked to be credible. Her testimony is supported by the contents of the file, which include a third-party report to the court discussing the respondent's physical and verbal abuse of the petitioner during the marriage. The file contains several restraining orders against the respondent. The file also confirms that the respondent resented paying his support orders over the years. It was reasonable for the petitioner to defer the issue for her self-protection and peace in the family, especially after testing the waters more than once and confirming the respondent's unwillingness to pay. Her failure to cite him for contempt sooner was to his benefit, not his prejudice.
The 2004 modification did not relieve the respondent of the responsibility to provide and maintain health insurance for the benefit of the remaining minor child. He might have been cited for violation of that order. It does not appear to have been conditioned upon the affordability of the insurance. But the petitioner's arrangement with the state has been treated as rendering the issue moot as between the parties.
The petitioner replied to the respondent's claim that she did not mail the bills to him at his home because she often did not know where he was living. The respondent denied the petitioner's claim. After hearing the parties and examining the envelopes from support enforcement, which the respondent showed the court to support his claim, it is clear that, during the years in question, the respondent lived at more than five addresses in Connecticut and Florida. He moved without informing the petitioner. He admitted she would not have known where he was in Florida. He claimed she could have learned his Connecticut address from the children after visitation. She testified that she did not want to involve the children and that, the one time she inquired, the child could only name the street. The address on the respondent's correspondence from support enforcement was the address at which the petitioner did ultimately mail him the bulk of the invoices in dispute, which address he gave her by phone call only because she had tried to notify him of the bills at his place of employment, to which he objected. The court concludes that the respondent made little or no effort to inform the petitioner of his mailing address and has no justification for complaint on that ground.
The respondent's credibility is further undercut by his attempts at criticizing the petitioner's testimony with claims which he abruptly abandoned when he apparently realized they were contradicted by his own testimony, such as: his claim that he could not afford to pay the medical bills when they were incurred, which he contradicted by claiming he would have paid them promptly if he had received them at the time they were incurred; and his claim that a finding of an arrearage of medical bills at this point in time was an attempt to deprive him of his right to declare the children as tax dependents, when he realized he had forfeited that right years ago by violating a condition of the judgment in accumulating an arrearage of current support.
ORDER
On April 12, 1996, the court ordered that the respondent pay one-half of all uninsured medical, dental, orthodontic, pharmaceutical, optical, psychiatric and other expenses incurred on behalf of the three children, providing the same were reasonable and necessary. The respondent had, and admits that he had, notice of that order.
The burden of proof as to the respondent's ability to pay is on him. He offered no evidence that he lacks the ability to pay. His admitted earnings of $700 to $800 per week confirm his ability to pay. He has been relieved of the previous orders as of July 2005. This court finds that he has the ability to pay. The order is reasonable in light of the respondent's ability to pay.
The respondent does not claim to have paid, or even agreed to pay, any of the amounts in question, despite his knowledge of the April 12, 1996 court order and of the amounts claimed from at least September 2005, 14 months before the hearing. He has offered no relevant excuse or defense. The failure to pay is not without his fault.
This court finds that the respondent owes the full amount of the petitioner's claim — $8,137.73. The court finds him in contempt of the court's April 12, 1996 order, that he pay one-half of all uninsured medical expenses incurred on behalf of the three children.
The respondent is directed to pay that sum in full within thirty days hereof. He is subject to a further citation for contempt of this decision and would face a risk of incarceration in the event of his failure to comply with this order.