Opinion
No. FA 87-0262944 S
March 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR COMTEMPT #116 MOTION FOR MODIFICATION #120
FACTS
The four-year marriage of the plaintiff, Harriet Thompson, and the defendant, George Thompson, was dissolved on February 26, 1988. Although the defendant was properly served with notice of the action, he filed no appearance. The court granted the plaintiff a default judgment of dissolution and entered the following orders: their marriage had broken down irretrievably; the plaintiff retained custody of the two minor children, subject to reasonable visitation rights to the defendant; payment of $60 per week per child as child support; payment of alimony in the amount of $50 per week; payment to the state of Connecticut for an arrearage in the amount of $25 per week; and an immediate wage garnishment of $195 per week to be paid to the state to secure the defendant's obligation of alimony, child support and arrearage to the state. In addition, the defendant was ordered to "refrain from assaulting, molesting, sexually assaulting, attacking, threatening, harassing, or imposing any restraint on the plaintiff, or entering the dwelling of the plaintiff." On September 20, 1989, in response to the state's motion for modification, the court ordered the "[d]efendant to pay $170 per week current support plus $25 per week towards arrears by immediate wage garnishment to the state of Connecticut." The order became effective as of June 20, 1989.
On March 12, 2010, the plaintiff filed a motion for contempt on the ground of the defendant's nonpayment of alimony up through that date. On July 14, 2010, the court ordered a continuance of the matter for a hearing on October 6, 2010 to accommodate the parties who both reside in Florida, for the plaintiff to obtain legal counsel and for the defendant to file a motion for modification of alimony. The defendant filed a motion for modification and reduction in alimony on July 14, 2010. Subsequently, on July 23, 2010, the defendant filed an objection to the plaintiff's motion for contempt raising the equitable defenses of laches, equitable estoppel and waiver and alleged that, because they had lived together since October 1992, he had made payments on behalf of her and for her benefit in lieu of having paid alimony directly to her. On October 6, 2010, the plaintiff filed an objection to the defendant's motion for modification on the ground that, pursuant to the judgment of dissolution, the defendant was obligated to pay her alimony in the amount of $50 per week, which he had not done and that, since the judgment lacked any provision regarding cohabitation, it was not modifiable and their living arrangements were inadmissible to modify the judgment.
A hearing on these two motions was held on October 6, 2010, with both parties testifying. At its conclusion, the court ordered additional briefing on the issues raised in their motions.
ARGUMENTS
In her memorandum of law in support of the motion for contempt, the plaintiff argues that pursuant to General Statutes § 46b-86 and the Supreme Court case of Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1977), the court lacks authority to retroactively modify an alimony award; the divorce decree does not allow for payments in lieu of alimony; the equitable defenses raised by the defendant do not bar the plaintiff's right to receive alimony as ordered by the court; and dissolution decrees cannot be modified by acts of the parties without further decree or order by the court. In response, the defendant counters that payments he made to third parties in lieu of direct alimony payments to the plaintiff satisfy his court ordered alimony obligation; the plaintiff is equitably estopped from collecting any claimed alimony arrearage; the defenses of laches and waiver render the plaintiff's claim uncollectible; and equity supports the defendant's position that the court ordered alimony and child support order from February 26, 1988, and as modified in 1989, should be modified at the present time and terminated. On November 3, 2010, the plaintiff filed her reply memorandum in support of her motion for contempt and in opposition to the defendant's motion for modification. She included one additional argument that the equity issue raised by the defendant is not the proper legal standard in this matter. Also, filed on November 3, 2011, was the defendant's reply memorandum in which he argued that he is aware that case law precludes retroactive modification and he is not attempting to retroactively modify the alimony award; rather he maintains that by virtue of their cohabitation and his payments for all of her living expenses, he has complied with the alimony order. The defendant further asserted that these payments made in lieu of alimony satisfy his alimony obligation and that the equitable defenses raised render the claimed arrearage uncollectable.
LAW
"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, 772 A.2d 681 (2001). Although the defendant, in the present case, is not in compliance with his obligation to pay alimony under the dissolution decree, the question is whether his failure to comply with the court's order constitutes contempt. As the court held in Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985), "[t]he fact that the order had not been complied with fully . . . does not dictate that a finding of contempt must enter. 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." "Such court action, however, must be supported by competent evidence. Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988)." (Internal quotation marks omitted.) Hall v. Hall, Superior Court, judicial district of New Haven, Docket No. FA 84 0232178 (December 14, 2010, Gould, J.). "[T]he defenses of laches, equitable estoppel and waiver regularly are raised by parties . . . contesting the recoupment of alimony and support arrearages"; Fromm v. Fromm, 108 Conn.App. 376, 384, 948 A.2d 328 (2008); as adequate bases to explain the failure to comply with court orders. Because the court need not find a party in contempt in order to mandate compliance with a court order; Fuller v. Fuller, 119 Conn.App. 105, 112, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010); the court has to consider whether the plaintiff's entitlement to alimony arrearage here is precluded by the equitable defenses raised by the defendant.
Equitable Defenses
"The defense of laches, if proven, bars a [party] from seeking equitable relief in a case in which there has been an excusable delay that has prejudiced the [opposing party]. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party]." (Internal quotation marks omitted.) Fromm v. Fromm, supra, 108 Conn.App. 385. The mere lapse of time, however, "does not constitute laches unless it results in prejudice to the defendant such that the defendant is led to change his position with respect to the matter in question." Brock v. Cavanaugh, 1 Conn.App. 138, 140, 468 A.2d 1242 (1983). Typically, the defense of laches has been upheld in instances where the plaintiff's conduct prior to the motion for modification places the defendant at a material disadvantage and or deprives the defendant of legal rights. For example in Fromm v. Fromm, supra 386, the defense of laches was upheld because the delay of more than ten years in filing her claim concerning her former husband's obligation to pay alimony and child support was inexcusable and prejudicial.
With respect to the defense of equitable estoppel, it is based on "the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights that might otherwise have existed against another person who has in good faith relied upon the first party's conduct and who has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Bozzi v. Bozzi, 177 Conn. 232, 241, 413 A.2d 834 (1979); see also Hudyma v. Hudyma, Superior Court, judicial district of New London, Docket No. 0044464 (May 14, 1998, Solomon, J.) ( 22 Conn. L. Rptr. 204, 205) (held that payee spouse, who waited fifteen years to recover unpaid alimony and had indicated at the time the dissolution judgment entered that she did not want it, was barred by the equitable defenses). "A claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Riscica v. Riscica, 101 Conn.App. 199, 205, 921 A.2d 633 (2007). "Though both estoppel and laches require the party asserting them to demonstrate prejudice, the former involves a communication that invokes reliance, whereas the latter concerns an inexcusable lapse of a substantial period of time." Rourke v. Wilson, Superior Court, judicial district of Danbury, Docket No. FA 97 329219 (April 28, 2010, Fusco, F.S.M.).
"Waiver is the intentional relinquishment of a known right . . . In contrast to the doctrines of equitable estoppel and laches, waiver does not require a showing of prejudice or detriment on the part of the other party." (Citations omitted; internal quotation marks omitted.) Zipkin v. Zipkin, Superior Court, judicial district of Hartford, Docket No. FA 99 0721406 (March 16, 2009, Abery-Wetstone, J.). As to all of these equitable defenses, "[i]ssues of credibility . . . impact the[ir] application . . ." Hudyma v. Hudyma, supra, 22 Conn. L. Rptr. 205.
In Hudyma v. Hudyma, supra, 22 Conn. L. Rptr. 204, the court acknowledged that the marriage of the plaintiff and the defendant had been dissolved in 1974. The court further stated that even though the defendant had not appeared, he received notice of the decree which included a provision for payment of alimony to the plaintiff in the amount of $10 per week. Id., 204. The controversy before the court, in which the plaintiff sought to enforce the alimony provision and an upward modification of that alimony order, arose as a result of her review of the dissolution decree in 1997. Id. In response, the defendant claimed that enforcement of the alimony provision was barred by the doctrines of laches, equitable estoppel and waiver. Id. At the hearing, the defendant testified that he had had a discussion with the plaintiff about the alimony provision wherein she had stated "that she didn't want the money." Id. Following the conclusion of the hearing, the court found that "[t]he parties did have a conversation soon after the entry of the Decree wherein the Plaintiff stated to the Defendant that she did not want alimony from him notwithstanding the terms of the Decree." Id., 205. The court stated that it made this finding "for a number of reasons. First, the Court notes the demeanor of the parties and the certainty of their testimony. The Defendant was clear in his recollection that such a conversation took place; the Plaintiff, on the other hand, could not recall, one way or the other, whether she and the Defendant ever discussed the alimony provisions subsequent to the entry of the Decree. Second, the existence of such a discussion would explain the lengthy period of time (23 years) during which the Plaintiff did not seek to enforce payment of the alimony obligation. Were the Court not to find that such a conversation took place, it would be left with Plaintiff's explanation that she did not enforce the Decree because, notwithstanding her presence in court at the time the Decree entered, she either forgot or was unaware that alimony had been ordered. The Court finds this explanation to be untenable. Finally, and perhaps most persuasively, the Court notes the substantial funds which the Defendant voluntarily and consistently gave to the Plaintiff and his daughter over the course of more than 20 years since the entry of the Decree. It is incomprehensible that he would have gratuitously provided these additional funds while, at the same time, knowingly and intentionally violating the Decree by failing to make nominal payments of $10 per week as ordered by the court. Defendant's failure to make the alimony payments, under these circumstances, is readily understood if one accepts, as this Court does, that the parties had a discussion many years ago in which the Plaintiff disclaimed her right to alimony under the Decree." Id., 205.
The court then made the following additional findings: "the Defendant has proved all of the elements required to establish the doctrines of waiver, laches and equitable estoppel. On the issue of waiver, the Court finds that the Plaintiff knew she had a right to alimony as provided in the Decree and intentionally relinquished that right in her discussion with the Defendant soon after the Decree entered. This same discussion, followed by an extraordinarily protracted period during which she did not seek to enforce her rights under the Decree, satisfy the first element required to establish laches and equitable estoppel. The prejudice or detriment which is required to establish the second element of these doctrines is likewise evident. First, the Defendant testified, and the Court finds, that no action was taken by the Defendant to modify the Decree because of his conversation with the Plaintiff and her failure to take any steps to enforce any claim to alimony. Defendant's reliance in this regard is significant because the Court believes that, had such a motion been filed, there existed a strong probability that relief would have been granted. This is so because the Plaintiff's significant increase in income, coupled with the relatively brief duration of the parties' marriage, would militate strongly against the continuation of an alimony obligation for the duration suggested by Plaintiff herein. Additionally, the Court notes that the Plaintiff's cohabitation for a period of three years soon after the entry of the Decree likewise might have constituted a basis for modification of the alimony order. The Court also finds prejudice or detriment on the part of the Defendant by reason of his continued voluntary furnishing of funds to the Plaintiff and his daughter over the course of more than 20 years. It is not unreasonable to conclude that, had he known that the Plaintiff would now seek to hold him accountable for the payment of alimony under the Decree, he would not have gratuitously provided such assistance." Id. As a result of these findings, the court dismissed the plaintiff's contempt citation and denied her motion for modification.
Findings
The facts of this case are similar to those in the Hudyma case, Id. In this case, the court finds that the parties cohabited in their residence in Fort Myers, Florida for a period of seventeen years. The down payment used to purchase the residence was provided by the Plaintiff. However, the Plaintiff used money she was holding as a custodian for the children who had been in an accident and for which they received a settlement.
The Defendant paid the monthly mortgage payments, real estate taxes and insurance. He also paid the electric and water bills. The Plaintiff paid the phone and cable bills and expenses for the children. Both parties shared the cost of food.
The title to the house is in the Defendant's name as "a married man." Although, he was not married when the house was purchased. When the Plaintiff discovered her name was not on the title, she tried to have the Defendant give her a quit claim deed. However, he never did so.
The Defendant took the position that the parties would sell the house after the youngest child became an adult. This child was not issue of the Defendant but has been raised as if she were his issue. The Defendant further stated that the proceeds from the sale of the house were to be divided between the two parties and that would result in past due alimony being paid. The Defendant denies this.
The issue of the Florida real property is not before this court except as it might relate to the equitable defense which the Defendant asserts.
It should be noted that the Defendant has $25 garnished from his wages for each pay period with a total arrearage in the amount of approximately $16,000 for past due child support.
It is apparent from the facts that the equitable defenses apply in this case. During the original hearing, the Defendant credibly testified that the Plaintiff had been told that he no longer had to pay her alimony.
As mentioned earlier, the court allowed a subsequent hearing for after discovered evidence. That evidence was a copy of a notarized and witnessed document signed by the plaintiff stating that she would like to inactivate her case against the Defendant as of July 17, 1995 ". . . As we are back together and trying to make a better life for our children . . ."
Defendant's Exhibit A, December 14, 2011.
That evidence is certainly compelling but was not needed because the evidence at the original hearing was sufficient for the Defendant to prevail.
Therefore, the court dismisses the Plaintiff's contempt citation and denies the Defendant's motion for modification.