Opinion
LLIFA084007431.
12-06-2012
Deborah SMITH v. Christopher SMITH.
Dixon & Brooks PC, Winsted, for Deborah Smith. Febbroriello John P. Law Office, Torrington, for Christopher Smith.
UNPUBLISHED OPINION
Dixon & Brooks PC, Winsted, for Deborah Smith.
Febbroriello John P. Law Office, Torrington, for Christopher Smith.
GALLAGHER, J.
The marriage of the parties was dissolved on September 9, 2009. By agreement of the parties, the judgment provided that the parties split the costs of unreimbursed medical, dental, optical, and prescription expenses in accordance with the child support guidelines with the husband paying 54% and the wife paying 46%. The judgment additionally provided that the college expenses of the child Tara were to be split 50/50 pursuant to section 46b-56c of the Connecticut General Statutes and that the defendant was to reimburse the plaintiff $4,000 as his share of Tara's college expenses within one year of the date of dissolution; the husband was to pay the wife the sum of $217 per week as alimony for 6 1/2 years from the date of the dissolution. The term is non-modifiable.
On December 22, 2011, the plaintiff filed a motion for contempt, claiming that the defendant failed to pay the co-pays for medical expenses and failed to pay his agreed-to share of their daughter's college expenses (# 131). Subsequently, counsel appeared for both parties. Defendant filed a motion to modify alimony on April 12, 2012 (# 136).
DISCUSSION
Contempt
Regarding the plaintiff's motion for contempt, the Connecticut Supreme Court has recently noted that " [i]t is well established that a separation agreement, incorporated by reference into a judgment, " is to be regarded and construed as a contract ... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ... If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law ... Contract language is unambiguous when it has a definite and precise meaning ... concerning which there is no reasonable basis for a difference of opinion ... [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted; internal citations omitted.) LOSO v. LOSO, 132 Conn.App. 257, 260-61 (2011). Whether the defendant is in contempt of the court's judgment depends on whether he intentionally violated the relevant provisions of the parties' agreement.
1. Unreimbursed medical expenses
Section 7 of the parties' agreement states: The parties will split the cost of the unreimbursed medical, dental, optical, prescriptive expenses in accordance with the Child Support Guidelines with the husband paying 54% and the wife paying 46%. The defendant's argument that he hasn't paid because the plaintiff did not provide him with proper notice of any unreimbursed medical expenses which she paid fails since, as plaintiff pointed out, he receives notice from the insurance company of what is paid and what is not paid to the provider. The defendant's failure to pay the unreimbursed medical expenses was intentional. The court finds him in contempt.
2. College tuition expenses
The relevant portion of section 8 of the parties' agreement states: The court shall retain jurisdiction of this issue pursuant to Connecticut Gen. Statutes 46b-56c. The parties agree to pay 50/50 the college expenses of Tara pursuant to 46b-56c.[*] The child is attending Ana Maria College at a cost of $38,058 per year. The child has obtained grants, scholarships and/or loans for this 1/2 school year[; ] however[; ] the plaintiff has paid an additional $8,000.[**] The defendant shall pay the plaintiff $4,000 as his share of the college expenses within one year of today's date.
At the hearing, the defendant said initially that he never received receipts for the plaintiff's payment. The plaintiff's credible evidence establishes that she provided proof of the payment of the $8,000 payment on the date of the divorce and again in March 2010. The defendant had not paid one cent to the plaintiff for tuition as of the date of the hearing.
Defendant argues that the child Tara failed to provide the defendant with her grades until May 2012 in violation of the statutory language of 46b-56c(e)(3) which requires the student to make all academic records available to both parents. He also claims that the plaintiff failed to send him Tara's tuition bills. The plaintiff's credible evidence is that the defendant refused to pay anything toward the tuition from the beginning. He said that he could not afford it, and that he " got stuck." The plaintiff, who was compelled to take out loans, paid the necessary portion of the child's tuition for two years, and she then again requested payment from the defendant. He again refused. The child's grades were never mentioned by the defendant. He never requested them. They are being used now as an attempt to avoid a finding that he was in contempt of the court's orders. Moreover, the child's grades are such that she is an honors student. The plaintiff advised the defendant regarding his daughter's grades. There is no reason why her father could not see the grades, and they were available to him. The court finds that the defendant is in contempt for his deliberate failure to pay the portion of his daughter's tuition bill for which he is responsible.
Alimony
Section 9 of the parties' agreement provides: The husband shall pay the wife the sum of $217 per week as alimony for 6 1/2 years from today's date, the term of which shall be non-modifiable. The alimony is taxable to the wife and deductible by the husband. The alimony shall end upon either parties (sic) death; remarriage of wife; and the subject to the provisions of Conn. General Statute 46b-86b and the cases interpreting said statute. The alimony shall be paid on the 15th of each month and the last day of each month (bi-monthly).
Section 46b-86 governs the modification of an alimony order after the date of a dissolution judgment. Section 46b-86(a) provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. " When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties ... Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the [General Statutes] § 46b-82 criteria, make an order for modification ... The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties ... Simply put, before the court may modify an alimony award pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties." (Citations omitted; emphasis in original; internal quotation marks omitted.) Jansen v. Jansen, 136 Conn.App. 210, 219 (2012).
The defendant argues that he is entitled to a modification because the increase in the plaintiff's income amounts to a substantial change in circumstances. However, the change is not substantial vis a vis the parties. Although the plaintiff's income has increased since the divorce, so has that of the defendant. Moreover, the plaintiff has had the additional burden of taking out higher loans than she would have had to do had the defendant paid his fair share of the tuition expenses. Her obligations are greater because of his violation of the terms of the judgment. It appears that, although he states he cannot afford to comply with his agreement regarding his own daughter's educational expenses, the defendant has taken on the burden of helping to support his live-in girlfriend's two children. His income tax returns for 2009 and 2010 indicate that they are his dependents. Our appellate courts have held that " if a party's culpable conduct causes an inability to pay an alimony award, then the threshold question of whether a substantial change of circumstances exists is not met." 136 Conn.App. at 220; see also Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977) (new hearing ordered where trial court reduced alimony without finding whether inability to pay alimony was result of defendant's own extravagance, neglect, misconduct or other unacceptable reason). The court finds that the defendant has not sustained his burden of proving a substantial change in the circumstances of either party which would justify modifying the alimony.
CONCLUSION
For the above stated reasons, the court finds the defendant in contempt of the provisions of the judgment requiring him to pay a share of the parties' son's unreimbursed medical expenses and the daughter's educational expenses. The court is advised that the defendant has, since the hearing, paid to the plaintiff the sum of $88.20 toward the unreimbursed medical expenses and the sum of $4,000 toward the educational expenses. The balance owed for the son's unreimbursed medical expenses is $64.56. The balance owed for the daughter's educational expenses is $29,750.
The defendant is ordered to pay the balance of the unreimbursed medical expenses as well as the balance of the daughter's educational expenses he owes to the plaintiff within 10 days of notice of this decision.
The defendant is ordered to pay $1,000.00 to Attorney Judith Dixon within 30 days of notice of this order.
[*] Not to exceed the UConn limitation.
[**] The plaintiff shall provide proof of the $8,000 payment.