Opinion
No. FA 07-4030675S
July 31, 2009
PLAINTIFF'S POST-JUDGMENT MOTIONS FOR CONTEMPT #127 AND #128 DEFENDANT'S POST-JUDGMENT MOTIONS FOR CONTEMPT #129 AND #131
The plaintiff's motions for contempt claim that the defendant failed to comply with section 13 of their separation agreement, incorporated by the court, Brennan, J.T.R., into the judgment of April 25, 2008, dissolving their marriage, which provided that both parties would "fully cooperate with the sale of the [marital] home and any recommendation of the listing agent, Lisa Bowman, shall be presumed reasonable by the Court." The defendant's motions claim that the plaintiff did not comply with his obligation, established in section 11 of the separation agreement, to continue paying the first mortgage on the marital home, in lieu of $200 per week in alimony, until the home was sold and to pay periodic alimony thereafter. When the parties appeared with counsel for hearing on these matters on May 22, 2009, they submitted a written stipulation of facts that neatly summarized the undisputed facts, concisely presented the issues in dispute, and requested orders on additional matters not originally mentioned in either party's motions for contempt. Each party testified, and the proceedings then adjourned for submission of briefs and revised proposed orders. Both briefs had been filed by June 9, but the court was not aware that both had been submitted until month's end. The matter is now ready for decision. For the reasons stated below, plaintiff's motions are granted, defendant's motion #129 is denied, and her motion #131 is granted.
The action was filed on June 6, 2007. On August 1, 2007, the court, Epstein, J. ordered, by written agreement of the parties, that the defendant would have exclusive possession of the marital home and that "[p]ending the sale of the marital premises plaintiff husband shall pay the first mortgage on the property . . ." Section 11 of the separation agreement provided that the plaintiff would "pay the defendant wife the sum of two hundred dollars ($200.00) per week as alimony . . . it is agreed that in lieu of the above alimony obligation going into effect immediately the existing pendente lite order relative to the expenses associated with the marital home shall continue."
I PLAINTIFF'S MOTIONS FOR CONTEMPT #127 AND #128
Pursuant to the parties' pendente lite stipulation, the marital home was listed for sale on March 19, 2008, for $319,900. On May 9, 2008, the listing agent Lisa Bowman notified the parties of her recommendation that since "the showings have been plentiful" and there had been no offer, "it is time to drop the price." Although the plaintiff was willing to follow that recommendation, the defendant was not, and the property continued to be listed for $319,900. On May 17, after having shown the property more than 20 times, the agent again recommended to the parties that the listing price be reduced "in the near future" by $10,000. On June 10, the agent told the plaintiff that "[showings] are plentiful, no offers yet," but "Helen wants to wait a bit before reducing." The defendant would only agree to a $5,000 reduction, and by June 19 the property was listed for $314,900. By July 16, the defendant had finally agreed to the agent's original recommendation, and the asking price was reduced to $309,900. On August 11, the agent wrote that she believed the property "was competitively listed" at that price but "[i]f we do not get an acceptable offer by August 11th we should reposition ourselves in the market at $299,900." Sometime later, the property was reduced to that price, but was not finally sold until February 13, 2009, for $288,500.
The evidence leaves no doubt that the defendant violated the provision of the judgment that she fully cooperate in the sale of the marital home. She agreed in the separation agreement that recommendations of the listing agent would be presumed reasonable and has offered no evidence here to rebut that presumption. She also did not offer any reasonable explanation for why she did not comply with the agent's recommendation. The plaintiff's motions for contempt are therefore granted.
II DEFENDANT'S MOTION FOR CONTEMPT #129
The defendant's motion for contempt #129 asks that the plaintiff be held in contempt for having stopped making the monthly mortgage payments in October 2008. It is true that his conduct violates the order in the judgment that he pay for the first mortgage until sale of the marital home. A contempt motion is an equitable proceeding, however, and "those seeking equitable redress in our courts must come with clean hands. The doctrine of clean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue . . . For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court . . . It is applied . . . for the advancement of right and justice . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked." (Citations omitted; internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 406-07, 867 A.2d 841 (2005).
On the facts of this case the court finds that the defendant, by not complying with the court order to cooperate in the sale of the marital home, does not have clean hands with regard to her claim that the plaintiff should be held in contempt on the related issue for stopping the mortgage payments. The defendant's wilful misconduct with regard to this matter put the plaintiff in the position of having to continue paying a monthly mortgage of $1,950 that substantially exceeded the monthly alimony that he would owe once the house was sold. As of May 17, 2008, when she refused to comply with the agent's recommendation to reduce the listing price by $10,000, she forfeited her right to insist that the plaintiff continue paying for the first mortgage. Any mortgage payments that he made after that should be treated As toward his alimony obligation, which commenced once his duty to pay the first mortgage ended. The court thus concludes that motion for contempt #129 should be denied.
III DEFENDANT'S MOTION FOR CONTEMPT #131
The defendant's motion #131 asks that the plaintiff be held in contempt for not paying alimony. The evidence showed that since stopping the monthly first mortgage payments in October 2008 he has paid the defendant alimony of $500 per month, which averages to $116.28 per week, or $83.72 less than the weekly alimony order. Any determination of an arrearage, however, must take into account the fact that the $7,800 he paid toward the first mortgage between June and September counts toward his alimony obligation, in addition to $500 he has paid in alimony since then. He had thus paid $8,300 toward alimony between June 1, 2008, and May 22, 2009, the date of the hearing on these matters, and he owed $13,000 in alimony for the 65 weeks between those dates. He had an alimony arrearage, as of May 22, 2009, in the amount of $4,700.
Noncompliance with a court order does not mandate a finding of contempt. Marcil v. Marcil, 4 Conn.App. 403, 494 A.2d 620 (1985). A court must also find that the party's conduct was wilful. Kennedy v. Kennedy, 88 Conn.App. 442, 443-44 (2005). "The inability of [a party] to obey an order of the court, without fault on his own part, is a good defense to a charge of contempt." Tobey v. Tobey, 165 Conn. 742, 746 (1974). Moreover, it is also "within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure." Marcil v. Marcil, supra, 4 Conn.App. at 405. The plaintiff testified that he could not pay the full alimony order because of his own expenses and having to pay for post-secondary education and related expenses for the parties' two children, Sebastian, born on October 16, 1987, and Maria, born on June 3, 1990. The separation agreement imposed several financial obligations on the parties relating to the post-secondary education of their children. They were to share equally two outstanding loans, for $10,248.62 and $3,500, taken out for Sebastian's previous post-secondary educational expenses, and to pay one-third each of future higher education expenses for either child. Any payments either one made toward the two existing loans would be credited toward their one-third obligation for Sebastian's future expenses. Their obligation to pay "one third of future higher education expenses for either child" was not limited to tuition, and thus logically also included other expenses for each child's higher education, such as room, board and books.
Section 10 of the separation agreement provided in part that "The plaintiff husband and defendant wife shall each be responsible for one third of the higher education costs of the minor child (the final third being the responsibility of the minor child). The plaintiff husband and defendant wife shall each be jointly responsible for the guaranteed debt for the child, Sebastian Spinoso. The outstanding debt to Sallie Mae ($10,248.62 and $3,500.00 [not including interest] approximately) shall be shared equally by the parties. The plaintiff husband and the defendant wife shall each be responsible for the higher education costs of Sebastian Spinoso, however, the parties shall each receive a credit toward said expenses from monies paid towards the Sallie Mae obligations."
Sebastian had dropped out of higher education in December 2007, but in July 2008 he began a 36-week program at the Baran Institute of Technology to become an automobile mechanic. That same month, Maria matriculated at Goodwin College, where she hopes to earn a Masters in Nursing degree, and she is currently in her second year there. The evidence showed that the plaintiff provided room and board for Sebastian, the reasonable value of which was $148 per week, for the 36 weeks that he attended Baran Institute, paid $898 for Maria's books at Goodwin College, and paid $240 per month in educational loans for the two children without contribution from defendant. In addition to providing room and board for Sebastian, paying for Maria's books, and making monthly payments toward their loans, he also paid for their auto insurance and loans, but these were either voluntary payments or obligations he undertook as part of the judgment. The plaintiff's financial affidavit showed income of $1,290 per week gross and $993 net after taxes. On this evidence, there is no basis to find that the defendant was unable to pay the full amount of alimony. The defendant's motion for contempt #131 is therefore granted. Orders as to any arrearage will be addressed below.
Until Sebastian's return to school, the plaintiff had lived with his sister, Maria, but the plaintiff had to rent his own residence, costing $240 per week, in order to provide a place for Sebastian to live while attending Baran Institute. Under these circumstances, half of the rental cost should be attributed to Sebastian. The defendant's brief stated that she "does not dispute the $28.00 per week food costs for Sebastian." Def.'s Post-Trial Memorandum and Proposed Orders, at 6.
Section 14(a) of the separation agreement states in part as follows: "The plaintiff husband shall retain the 2005 Honda Civic for the benefit of the minor child. The plaintiff husband shall be responsible for any costs associated with 2005 Honda Civic and shall hold the defendant wife harmless for any such liability. The parties shall transfer the 2005 Nissan Altima over to the parties' son and remove him from the defendant wife's automobile insurance." Although the plaintiff claimed that he should receive credit toward alimony for paying the auto loans and insurance for the vehicles used by Maria and Sebastian to drive to and from school, Section 14(a) of the separation agreement provided that the plaintiff would be responsible for the costs of the vehicle driven by Maria, and there was no proof that Sebastian used his car primarily or even exclusively for college.
IV OTHER ISSUES
The parties' written stipulation, briefs and proposed orders also asked the court to address other matters pending between the parties: (i) their liability for the defendant's 2007 tax return (ii) the liabilities of each for joint credit card debt, (iii) distribution of funds from sale of the marital home being held in escrow, and (iv) responsibility for Sebastian's and Maria's higher education. The court will address these issues in turn.
Items (i) though (iii) were requested jointly by the parties in their written stipulation. Item (iv) was requested by the parties in their post-hearing briefs.
A Income Taxes
The plaintiff had already filed state and federal income tax returns for 2007 before the judgment and received tax refunds totaling $3,008. Section 16 of the separation agreement provided that he would file "an amended tax return for tax year 2007 as a joint return with the defendant wife. Any subsequent refund shall be split in proportion to the income of the parties." Because he did not file the amended return, the defendant had to file an individual tax return and incurred tax liabilities of $1,048 owed to the state and federal governments. It is impossible now, without evidence of each party's income and deductions, to assess their 2007 tax liability had they filed jointly, determine the amount of any refunds, and allocate those refunds in accordance with Section 16. Nonetheless, it is likely that, in view of the plaintiff's greater income than the defendant's on all financial affidavits they have filed and the fact that filing individually he received refunds of $3,008 while she incurred tax liabilities of one-third that amount, she would not have had to pay any tax liabilities and would have shared in refunds if they had filed jointly. Thus, the court finds that plaintiff owes defendant the sum of $1,008 to reimburse her for the taxes she had to pay because he did not file the amended return and $1,000 for half of the balance, for a total of $2,008.
B Credit Card Debt
Section seven of the separation agreement provided that certain credit card debt, totaling approximately $25,000, would be paid from the proceeds from sale of the marital home, but after the sale there was only $10,189.41, from which each party has already received $1,500, leaving a balance of $7,189.41. Pursuant to the parties' separation agreement and stipulation of facts, the defendant was entitled to $570 to get the house ready and $887.50 to repay her for the plaintiff's use of marital funds to pay counsel fees. The plaintiff also had to pay $425 to get the house ready for sale because the defendant did not clean the house adequately when she vacated the premises. The court concludes that these sums should be paid to the parties in advance of dividing the remaining funds equally. Subtracting those amounts leaves a balance of $5,306.91.The plaintiff testified that he had paid $6,819.20 since the judgment toward the credit card debt, but he also acknowledged continuing to use those cards. The amount he paid, even if fully allocated to the marital debt, would be insufficient to discharge his half share of those debts. Moreover, there was insufficient evidence offered to permit the court to allocate these payments between marital debt and newly incurred debt. There is not enough money in escrow to satisfy the credit card debt, and the court cannot resolve issues regarding allocation of the escrow balance to that debt based on the present evidence.
C Higher Education Costs
In addition to each party's responsibility under section 10 of the judgment to pay one-half of the guaranteed Sallie Mae loans for Sebastian's prior educational expenses, each parent's one-third share of their children's higher education expenses incurred since the judgment is as follows:
Under section ten of the judgment, set forth in footnote 2 above, each parent is to receive a credit toward their obligation to pay one-third of Sebastian's future higher education expenses for payments either parent makes toward the Sallie Mae debt incurred to finance Sebastian's earlier higher education expenses.
Expense Amt Parental Share
Sebastian's tuition at Baran Institute $25,090 $8,363.33
Sebastian's room and board while attending Baran $5,508 $1,836.00
Maria's tuition at Goodwin College for first two years $33,700 $11,233.33
Maria's books $898 $299.33
TOTAL $65,196 $21,732.00
The plaintiff paid $5,773 for Maria's books and Sebastian's room and board, toward which the defendant made no contribution. Although the plaintiff has been also paying $230 per month for Sebastian's and Maria's higher education loans and defendant has periodically paid, $100 per month for Sebastian's old loans, each without contribution from the other, there was no evidence offered as to the total amount that either one has paid toward past or present loans taken out to finance the children's higher education and the evidence was unclear about how much of the plaintiff's monthly payment of $230 is for Sebastian and how much is for Maria. There is thus insufficient evidence to use the escrow to balance the parties' contributions to their children's tuition or loans.
In his testimony the plaintiff one time said that the monthly payment of $230 was 75% for Sebastian's loans and 25% for Maria's, but another time he said that two-thirds of each payment was for Sebastian and one-third for Maria. He also said that beginning in May 2009 Sebastian would be responsible for his own expenses, but it was unclear if this meant Sebastian would start paying for all of the loans incurred to finance Baran Institute.
As long As the plaintiff pays alimony to defendant and the parties continue to pay for prior and ongoing expenses of higher education at no more than the current levels, the court believes that the weekly difference between what each is paying toward the mutually-agreed and court-ordered obligation to pay for their children's higher education should be netted out from alimony. Each party is ordered to deliver to the other in writing by the third day of each month how much each one paid the previous month for (i) Maria's higher education expenses, (ii) Sebastian's expenses for attending the Baran Institute, and (iii) the Sallie Mae guaranteed loans taken out to finance Sebastian's earlier college education and referred to in section ten of the judgment. The written notice should specify the exact amounts paid, the reason for the payment, and in which category — i, ii, or iii — the expense fell. If the plaintiff paid more than defendant did in the previous month, the plaintiff will receive a credit toward his alimony (and alimony arrearage) obligation for the current month for the difference between what he paid and she defendant paid. If she paid more than he did, he will pay her the excess that month, in addition to his full alimony (and arrearage) obligation. If either party does not deliver such written notice to the other by the third day of the month, the party not delivering the timely notice shall be deemed not to have made any payments toward these expenses in the previous months, and alimony shall be paid that month accordingly.
The purpose of allocating the expense to one of these three categories is because payments either party makes toward Sebastian's old college debt is to count toward their obligation to pay his more recent expenses. This will not affect payments on a monthly basis, but does provide a ceiling on how much each is required to contribute overall.
The defendant has argued that she was not given an opportunity to consult with Maria about her choice of college, but the judgment is unambiguous-each party is to pay "one-third of the higher education costs" for both children, unlike the Connecticut post-secondary education statute, General Statutes 46b-56c, which would appear to mandate some parental involvement in the choice of school. General Statutes Section Sec. 46b-56c, captioned "EDUCATIONAL SUPPORT ORDERS," provides in relevant part as follows: "(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age . . . d) at the appropriate time, both parents shall participate in, and agree upon, the decision as to which institution of higher education or private occupational school the child will attend. The court may make an order resolving the matter if the parents fail to reach an agreement." (Emphasis added.)
D Distribution of Funds Being Held in Escrow from Sale of the Marital Home
Based on the above findings, the plaintiff owes the defendant $6,908 for unpaid alimony through the date of the hearing and income taxes, while she owes him $2,135.33 for her one-third share of Maria's books and Sebastian's room and board. The difference between these two obligations is $4,772.67 still owed to the defendant. From the funds held in escrow, $1,350.50 should be paid to the defendant for the funds borrowed by plaintiff from marital funds and getting the house ready; and the $425 due to the plaintiff for cleaning the house shall also be paid to defendant toward the $4,772.67 he owes her, with a new balance now of $4,347.67. Each party's one-half share of the balance of $5,306.91 is $2,653.45. Defendant shall be paid her half share; plaintiff's share shall also be paid to the defendant toward the $4,347.67 he still owes her, leaving a new alimony arrearage balance of $2,228.45. The plaintiff is ordered to pay the arrearage to the defendant at the rate of $50 per week.
V COUNSEL FEES
Under General Statutes § 46b-87, the prevailing party in a contempt action may be awarded a reasonable attorneys fee, and both sides have requested counsel fees for the contempt motion here. "The award of attorneys fees in contempt proceedings is within the discretion of the trial court." Tatro v. Tatro, 24 Conn.App. 180, 189, 587 A.2d 154 (1991). Plaintiff has prevailed on his motions for contempt and on one of the defendant's motions, and defendant has prevailed on one of hers. In these circumstances, the court exercises its discretion not to award fees to either side on the motions addressed herein.
General Statutes Section 46b-87 provides in relevant part as follows: "When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person."
VI ORDERS
1. Plaintiff's motions number 127 and 128 are granted. Defendant's motion number 129 is denied. Her motion number 131 is granted. Plaintiff is ordered to pay $50 per week toward the alimony arrearage of $2,228.45. No counsel fees are awarded to either party.
2. The remaining funds held in escrow from sale of the marital home shall be paid to the defendant.
3. By the third day of each month, each party shall deliver to the other a written notice of payments made the previous month toward any of the children's costs of higher education covered by the judgment. Any difference in the amounts paid by the parties shall be treated as a credit toward alimony (and alimony arrearage) due for the month, or paid in excess of alimony that month, as the case may be and as more particularly set forth in section IV-C of this decision.
4. Insufficient funds remain and insufficient evidence was offered to address issues regarding credit card debt or to enter other orders regarding costs of higher education.