Opinion
No. FA03-0127179
August 24, 2004
On March 22, 2004 and May 24, 2004 the parties, and their respective counsel, appeared before the court and presented testimony regarding the above motions. The defendant seeks a modification of the pendente lite child support and alimony orders. The plaintiff seeks a ruling that the defendant is in contempt of the existing pendente lite orders regarding child support and alimony. At the evidentiary hearing, the court specifically found that good cause existed for the court to consider the Motion to Modify, dated and filed on October 20, 2003.
In a memorandum of decision, dated July 25, 2003, Judge Trial Referee Vasington ordered that the defendant pay pendente lite child support in the weekly amount of $315.00 and pendente lite alimony in the weekly amount of $100.00. In that memorandum Judge Vasington specifically found the defendant's weekly income was $1,137.08. At the time of hearing the plaintiff claimed a net weekly income of $600.00. Since the hearing before Judge Vasington, each party has suffered a loss of employment, a period of unemployment and re-employment at a lower income. The defendant's loss of employment occurred on October 10, 2003, while the plaintiff's loss of employment occurred on October 29, 2003. Each party asserts that they have diligently pursued employment opportunities, while claiming that the other party is working at less than full earning capacity. At the time of Judge Vasington's order of child support there were two minor children. As of March 15, 2004, only one child remained eligible for a child support order.
Having heard and considered the evidence presented, the court finds the following facts:
There has been a substantial change in the financial circumstances of the parties.
Neither party is working at their full earning capacity. The plaintiff is found to have a net weekly earning capacity of $480.00. The defendant is found to have a net weekly earning capacity of $910.00. Based upon such earning capacities, the Connecticut Child Support Guidelines call for the defendant to pay weekly child support in the amount of $245.00 for the period from October 20, 2003 through March 15, 2004. Subsequent to March 15, 2004, the guidelines call for the defendant to pay weekly child support in the amount of $165.00.
Since the date of Judge Vasington's orders, the defendant has made direct payments of child support and alimony which total $4,500.00. In addition to the direct payments, the defendant is entitled to credit for certain payments made by the defendant for the benefit of the plaintiff and the minor children. Connecticut courts have recognized that, "in some domestic cases unique or compelling circumstances may justify or require equitable relief." Lundborg v. Lundborg, 15 Conn.App. 156 (1988) ". . . Situations may arise in which equitable considerations would permit a parent to credit, against past due support payments, voluntary expenditures made on behalf of the child . . . The circumstances of each individual case are considered in determining whether credit can be allowed." Goold v. Goold, 11 Conn.App. 268, 273 (1987) The court in Goold stated that among the circumstances to be considered are: (1) whether the father brought a motion for modification of the support order; and (2) whether the mother has in some manner consented to accept the father's direct support of the child as an alternative method of payment. Under the circumstances of the present case, the court finds that the defendant is entitled to credit for certain payments made for the benefit of the plaintiff and the minor children. These credits total $8,156.97.
In light of the direct payments, the credits and the subsequent orders of this court regarding the modification of alimony and child support, the defendant is found to have failed to fully comply with the orders of the court regarding alimony and child support. As of the date of hearing, May 24, 2004, the total arrearage of alimony and child support is found to be $1,598.03.
A failure to comply with an order of the court is an indirect contempt. Sgarellino v. Hightower, 13 Conn.App. 591 (1988). A finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases. Potter v. Board of Selectman, 174 Conn. 195 (1978).
While it has been determined that the defendant has failed to comply with the orders of the court, such a finding does not require a finding that the defendant is in contempt. A willful failure to comply with an outstanding court order may constitute a civil contempt, although a finding of contempt depends upon the facts and circumstances surrounding it. Marcil v. Marcil, 4 Conn.App. 403, 405 (1985). In order to constitute contempt, a party's conduct must be willful. Connolly v. Connolly, 191 Conn. 468, 483 (1983). It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order. Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). The defendant in this case was under the mistaken belief that additional payments made by him would be considered as credits toward his obligations for alimony and child support. Under the circumstances, the court has determined that the defendant's failure to comply was not willful.
In light of the findings of the court and the applicable statutory criteria, the court enters the following orders:
1. For the period from October 20, 2003 through March 15, 2004, the defendant's weekly child support obligation is $245.00.
2. Subsequent to March 15, 2004, the defendant's child support obligation is $165.00.
3. The defendant is to pay weekly alimony in the amount of $80.00. Said order is retroactive to October 20, 2003.
4. The alimony and child support orders are to be enforced by immediate wage withholding order.
5. The arrearage of alimony and child support as of May 24, 2004, which has been found to total $1,598.03, is to be paid in full on or before September 30, 2004.
6. The Plaintiff's Motion for Contempt is denied.
7. Each party is to pay their own attorneys fees.
By the Court,
Arthur C. Hadden, J.