Opinion
No. FA 99-0549057S
August 24, 2011
MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION FOR PAYMENT OF ATTORNEYS FEES (116) AND DEFENDANT'S MOTION TO OPEN AND MODIFY JUDGMENT (117)
A review of the record reveals that the parties were divorced pursuant to a marital separation agreement dated June 17, 1999. There are two minor children, ages 13 and 16. Happily, there was no activity in the matter until January 27, 2011 when the defendant father filed a motion to open judgment and modify custody (112) due to his moving to England for work. The parties appeared, together with counsel, on August 23, 2011. There was a great deal of discovery, pleadings and time spent but ultimately, with the assistance of the capable Guardian ad litem, the defendant withdrew his request to modify custody and relocate one daughter to England pursuant to a stipulation on August 8, 2011. The issues presented are:
1. The new child support figure;
2. The appropriate date of its retroactivity;
3. Whether the plaintiff wife has incurred attorneys fees which should be reimbursed to her;
4. Who should pay the balance of the Guardian ad litem fees.
The court finds the following facts proven by a fair preponderance of the evidence:
1. The husband is employed by General Dynamics Corp.
2. On or about December 2010, he applied for and was granted a transfer to England.
3. On or about January 27, 2011, the defendant filed a motion to modify custody due to his move to England.
4. The transfer to England was voluntary and not mandatory. The defendant sought the position because he felt he would be able to work fewer hours, have less stress and spend longer periods of quality time with his children.
5. On or about February 27, 2011, the defendant began working in England.
6. When he commenced working in England, the defendant received a $10,000 signing bonus, a 15% "foreign service" increase from his base salary of $116,000, $985 per week as a housing and transportation stipend, $125 per week as a (Connecticut) home maintenance allowance and $2.35 per week in company stock.
7. Despite protracted litigation, court appearances, formal and informal requests for discovery and the exchange of financial affidavits and financial information, the defendant did not disclose this significant additional income until July 14, 2011. The plaintiff makes a well reasoned and convincing argument that the defendant should be responsible for the legal fees associated with unearthing and ultimately obtaining such basic financial information.
8. The defendant's claim that he did not believe that this "extra income" need be disclosed is unconvincing. At best, the court finds that he should have quickly and fully disclosed all income, from whatever source, and then argue whether or not it should be considered for purposes of child support. He was at all times represented by capable counsel.
9. The parties argued at great length as to which child support guidelines worksheets should be relied upon. The defendant claims that if the "housing and transportation stipend" is to be counted then the associated living expenses necessitated by his maintaining a second home including food, utilities, gasoline for his vehicle, automobile insurance, cable TV and homeowner's insurance in England should be deducted. This argument fails for several reasons, the least of which is that under this logic, the more one spends on food, cable TV and rent, the less one pays for child support. The plaintiff argued convincingly that regulations 46b-215a-2b control and that a party's net income, for purposes of child support, is determined by taking the gross income less state and local taxes and health insurance premiums.
10. The plaintiff's child support guidelines worksheet precisely tracks the applicable statutes, regulations and case law and produces a presumptive child support figure in the amount of $439 plus 59% of any unreimbursed medical and dental expenses as the father's obligation.
11. The existing child support order is $274 per week producing a difference of $165 per week. There have been 24 weeks from the date that the motion for modification of child support was originally docketed yielding an arrearage of $3,960.
12. The court sees no reason to deviate from the presumptive child support guidelines figure despite the testimony that the father is obligated to fly the children to England four times per year. There was no evidence as to the cost of those airplane tickets or whether frequent flyer miles would be available. Moreover, the expense which he would have incurred in feeding and entertaining two teenage girls every other weekend in Connecticut is not insignificant.
13. The parties argued about whether or not the remaining Guardian ad litem fees should be shared equally. The court does not believe that the father's motion to modify custody and move one of the girls to England with him was frivolous or filed without good cause, notwithstanding the fact that eventually, the request was withdrawn. The court finds it fair and reasonable that the parties should share equally the balance of the Guardian ad litem fees.
14. The plaintiff claims that $7,781.32 is due to her in fees and disbursements incurred by her as a result of the defendant's failure to properly and promptly disclose his complete income. The court agrees, in part. The court finds that the defendant fully disclosed his income with his financial affidavit of July 14, 2011, just one day following the plaintiff's filing a Motion to Compel and for Sanctions. The court finds that the time reasonably spent in attempting to unearth the defendant's actual income was $2,600 plus $42.65 in disbursements for a total of $2,642.65.
LEGAL DISCUSSION
The court in Billington v. Billington, 220 Conn. 212 (1991), spoke to the issues of full and frank disclosure between parties in a dissolution matter.
Our Practice Book has long required that "at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement . . . of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income." The opposing party is required to file a similar affidavit "at least three days before the date of the hearing . . . Our cases have uniformly emphasized the need for full and frank disclosure in that affidavit. `A court is entitled to rely upon the truth and accuracy of sworn statements required by § 380 [now 463] of the Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.' Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974). `These sworn statements have great significance in domestic disputes in that they serve to facilitate the process and avoid the necessity of testimony in public by persons still married to each other regarding the circumstances of their formerly private existence.' Cohen v. Cohen, 11 Conn.App. 241, 247, 527 A.2d 245 (1987); see also O'Bymachow v. O'Bymachow, 12 Conn.App. 113, 118-19, 529 A.2d 747, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987) (defendant entitled to rely on information in plaintiff's financial affidavit); Gelinas v. Gelinas, supra, 175 (recognition of "the need for a full and fair disclosure of information contained in a financial affidavit"); Grayson v. Grayson, supra, 287 ("compliance with the rules concerning the filing of financial affidavits is essential in order for the court to make a reasoned decision with respect to such orders"); Jackson v. Jackson, supra, 188 ("[t]he sworn financial statements of the parties under Practice Book 463 have great significance in domestic disputes"). Thus, the requirement of diligence in discovering fraud is inconsistent with the requirement of full disclosure because it imposes on the innocent injured party the duty to discover that which the wrongdoer already is legally obligated to disclose.
Moreover, in Monroe v. Monroe, supra, we referred to the requirement of full and frank disclosure between attorney and marital client. "[L]awyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests." Id., 183. In Baker v. Baker, 187 Conn. 315, 322, 445 A.2d 912 (1982), we imposed this requirement of honest disclosure between the litigating parties and the court. It is a logical extension of those precedents to require such full and frank disclosure as well between the marital litigants themselves. "This principle of complete disclosure is consistent with the notion that "the settlement of a marital dissolution case is not like the settlement of an accident case. It stamps with finality the end of a marriage. `Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.' Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Courts simply should not countenance either party to such a unique human relationship dealing with each other at arms' length. Whatever honesty there may, or should, have been during the marriage should at least be required by the court at its end. Id. 219-21.
In the case at bar, there is simply no excuse for the defendant's failure to make a timely and complete disclosure of all of his income. On balance, the court finds that the defendant should pay the reasonable costs incurred by the plaintiff in discovering this basic information.
The court in Ramin v. Ramin, 281 Conn. 321 (2007), recognized the authority of a trial court to award attorneys fees, irrespective of the ability to pay, for litigation misconduct such as that which this defendant perpetrated.
Our conclusion that a court should have the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct is consistent with the reasoning of our decision in Billington v. Billington, supra, 220 Conn. 212. In that case, we explicitly recognized the requirement of full and frank disclosure between marital litigants. Id., 221. We drew that requirement from our understanding of the unique nature of the marital relationship; id. ("Courts simply should not countenance either party to such a unique human relationship dealing with each other at arms' length. Whatever honesty there may, or should, have been during the marriage should at least be required by the courts at its end."); and from the understanding that "the principle of full and frank disclosure . . . is essential to our strong policy that the private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine." Id. Thus, in eliminating the requirement of diligence in order to prove fraud, we stated that "the requirement of diligence in discovering fraud is inconsistent with the requirement of full disclosure because it imposes on the innocent injured party the duty to discover that which the wrongdoer already is legally obligated to disclose." Id., 220. By recognizing today this limited expansion of Maguire, we are reinforcing the marital partners' mutual obligation of full and frank disclosure by permitting the trial court an additional remedy for egregious violations of that obligation when those violations have not otherwise been adequately addressed by the court. Id. 353-54.
ORDERS:
1. The defendant shall pay child support to the plaintiff in the amount of $439 per week and 49% of any unreimbursed medical, dental, psychological, optical, opthalmological or pharmaceutical expenses.
2. The defendant shall pay to the plaintiff the sum of $3960 as a child support arrearage within 60 days.
3. The parties shall share equally the balance due to the Guardian ad litem and pay that sum within 30 days.
4. The defendant shall pay to the plaintiff the sum of $2,642.65 as attorneys fees and disbursements within 60 days.
All other orders not inconsistent with these orders shall remain in full force and effect.