Opinion
FA144073473S
11-19-2015
Kelly T. Tobin v. Jonathan S. Tobin
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Anna M. Ficeto, J.
This matter comes before the court on plaintiff's Motions for Contempt, Post Judgment dated April 10, June 2, and June 5, 2015 (#125, 126 and 131) and defendant's Motion for Order dated June 5, 2015 (#128). The matter was heard before the court on October 30, 2015. Both parties are represented by counsel.
Contempt Motions
The parties' marriage was dissolved on February 6, 2015 by way of a Separation Agreement. The plaintiff alleges several violations of the Separation Agreement that was adopted by and made an order of the court. More specifically, the plaintiff alleges violations of Sections 2(VI), 3(a) and 3(e). Those sections provide in pertinent part as follows: Neither party is to involve the minor child with a third-party romantic interest at least one year postjudgment; child support shall be made payable by way of an automatic bank account-to-bank account transfer at the Bank of America; and defendant is to maintain life insurance with a death benefit of at least $500,000 for the benefit of the minor child.
First, however, it is necessary to set forth the meaning of civil contempt. " Contempt is a disobedience to the rules and orders of a court which has the power to punish for such an offense . . . If the underlying court order was sufficiently clear and unambiguous . . ." the issue is whether the violation was " wilful, excused by a good faith dispute or misunderstanding." Johnson v. Johnson, 111 Conn.App. 413, 420-21, 959 A.2d 637 (2008). " Under Connecticut law, such proceedings should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 318, 105 A.3d 887 (2014).
Even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order. Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988). " The court has authority to order additional measures not contained in the original order if they are necessary to effectuate the original judgment." Behrns v. Behrns, 124 Conn.App. 794, 822, 6 A.3d 184 (2010) citing Roberts v. Roberts, 32 Conn.App. 465, 471-72, 629 A.2d 1160 (1993).
The plaintiff testified, and the defendant did not dispute, that the defendant resides in Chester with his paramour, Christina. The parties agree that the minor child has been exposed to and involved with Christina. The defendant testified that Christina was a friend of both parties and the child had been exposed to and involved with Christina well before the dissolution. In fact, the parties and Christina, along with the minor child, spent Thanksgiving of 2013 together. Defendant testified that he remained friends with Christina and their relationship evolved into a romantic one.
The plaintiff contends that the relationship between Christina and the defendant was of a romantic nature prior to the dissolution and that defendant's affair with Christina was the cause of the break-up of the marriage. In either scenario, it is clear that the child had significant exposure to Christina prior to the dissolution.
The February 6, 2015 Separation Agreement also sets forth the manner in which the defendant is to pay child support and the amount of life insurance he is to carry for the benefit of the minor child. Defendant alleges that he experienced delays obtaining the life insurance policy as the insurer required the performance of a medical procedure prior to issuing the policy. He alleges that obtaining an appointment with a dermatologist and awaiting results took an unusually long time. He testified at trial that there exists a temporary binder in place for the $500,000 policy and he expected to receive permanent insurance shortly. The existence of the temporary policy was made known during the hearing.
The defendant further testified that he has unable to comply with the Separation Agreement relative to the payment of child support by creating an automatic bank account-to-bank account transfer at the Bank of America. He testified that Bank of America did not permit the transfer as contemplated in the Agreement. He agreed that he was late paying child support on several occasions, usually by paying on a Monday instead of Friday. He testified that " I just opened" an Essex Savings Bank account in attempt to create an automatic bank to bank transfer.
The plaintiff vehemently disagreed with the defendant's testimony. She testified that she contacted Bank of America and was informed that an automatic bank account-to-bank account transfer was entirely feasible. She asks that the child support be paid by automatic wage withholding.
It is apparent to the court that there exists residual marital discord between the parties and that the motions filed by the parties are a means of annoying each other. The defendant, though he may have encountered bona fide difficulties in meeting the terms of the Separation Agreement, was woefully inadequate in his attempts to notify the plaintiff and keep her apprised of developments. The hearing of October 30 was not the forum in which to advise the plaintiff that a life insurance policy was in effect. Similarly, it appears that a hearing was necessary in order to have the defendant comply with the child support payment mechanism. The parties have been divorced for nearly eight months and the defendant testified that he " just" opened an account at Essex Savings Bank. There is no excuse for the delay in facilitating the automatic payment of child support. Likewise, although Christina may have been involved in the life of the minor child both pre and post dissolution, it was decidedly shortsighted and foolish for the defendant to live with his paramour given the specific language in the Separation Agreement.
The court declines to find the defendant in contempt. The defendant has not complied strictly with the orders of the court. The court cannot find, however, that the violations are willful and that they have been proven by clear and convincing evidence.
Motion for Order
The defendant's Motion for Order seeks the return of a property tax refund and an escrow refund as a result of the sale of the former marital home. The Separation Agreement states that the plaintiff was to retain the marital home. The Agreement called for the defendant to quitclaim his interest in the marital home within five days and for the plaintiff to simultaneously pay the defendant $50,000.
Defendant alleges that although the mortgage of the marital home was in both parties' names prior to the dissolution, he paid most expenses of the marital home, including the taxes. He states that the plaintiff sold the marital home shortly after the dissolution and because he had prepaid taxes, he is entitled to the refund. The mortgage holder issued an escrow balance refund of $1,300.47. The plaintiff has refused to tender the refund.
The defendant's concerns relative to payment of pre-dissolution obligations should have been addressed in the Separation Agreement. The issues were known to him prior to the dissolution. The " court does not have the authority to modify the division of property once the dissolution becomes final." Sousa v. Sousa, 157 Conn.App. 587, 596, 116 A.3d 865 cert. granted, 317 Conn. 917, 118 A.3d 61 (2015).
Defendant testified that he had discussion with his bank prior to dissolution, instructing the bank to not prepay taxes to the town.
ORDERS
1. Motion for Contempt dated April 10, 2015 (#125) is DENIED.
2. Motion for Contempt dated June 2, 2015 (#126) is DENIED.
3. Motion for Order dated June 5, 2015 (#128) is DENIED.
4. Motion for Contempt dated October 2, 2015 (#131) is DENIED.
5. The defendant shall pay child support through immediate wage withholding.
6. The defendant shall forthwith provide proof of the required life insurance policy.
Defendant testified that he had discussion with his bank prior to dissolution, instructing the bank to not prepay taxes to the town.
7. The defendant shall pay plaintiff the sum for $1,000 in attorneys fees within 20 days of this order.
SO ORDERED.