Opinion
No. FA 054006044
November 30, 2005
MEMORANDUM OF DECISION
The parties presented evidence relating to the plaintiff's motion for contempt dated October 13, 2005. The plaintiff claims that her husband violated court orders when he failed to pay court-ordered child support, medical expenses, school tuition, household expenses, tax and credit card contributions and insurance. The plaintiff also alleges that the defendant intentionally includes his girlfriend in his visits with the parties' minor child.
I. Facts of the Case
On January 27, 2005, pursuant to an agreement of the parties, the trial court entered the following orders:
9. The husband shall pay $163 per week in child support and 44% of daycare or work related babysitting starting today (total check owed today for current support and daycare is $223) and due every Monday starting January 31.
10. There is a child support and daycare arrearage in the amount of $955 ($700 support and $255 daycare). He shall pay this to the wife today before leaving court.
10a. Husband shall pay 44% of uninsured medical and dental etc. expenses for the child and wife shall pay 56%.
11. The Husband shall pay the child's February tuition in the amount of $238 directly to the school. The tuition shall be paid 50/50 with each party remitting his or her share to the school.
12. The Husband shall pay the February mortgage, taxes, insurance on condo and condo fees. As of March 1, 2005, the Husband shall pay to the Wife due on the first of each month, 1/2 of the mortgage, taxes, condo insurance and condo fees.
13. The Husband shall pay the next special assessment on the condo and thereafter the parties shall pay it 50/50.
14. Parties shall split equally the monthly minimum on the joint credit card by each remitting a check for 50% to the credit card company.
15. Husband shall pay all IRS debts/bills in a timely fashion.
16. Each party shall pay his/her own car insurance.
18. No unrelated female to be in the presence of the child during visitation. The Husband's girlfriend is not to attend any of the child's activities.
The defendant husband currently works at Fair Haven Lobster where he earns a gross income of $52,000 per year. Although that is the same salary that he earned at the time he entered into the January 2005 agreement, the defendant no longer receives a $1,500.00 per month payment from a business venture.
In January 2005 the defendant received $1,500 per month from Ralph Cifarelli as part of a commercial transaction. Mr. Cifarelli defaulted in 2005. As a result the defendant has lost significant income. Furthermore he did not receive a $29,000 balloon payment from Mr. Cifarelli that should have been forwarded on October 1, 2005.
Most of the defendant's outstanding obligation involves accounts and bills that arrive at the former marital home. The plaintiff receives these bills, pays the same and then seeks reimbursement from the defendant. The defendant was properly notified of his obligation. He admits that he has not paid all that was required by the court order.
The defendant was notified on multiple occasions, by mail, through counsel and through hand delivery from the plaintiff.
With respect to child support, the defendant has failed to pay his portion of the private school tuition, extra curricular activities (ordinary and regular activities), day care (including summer day care) and medial expenses. He has paid the court-ordered $163 per week for basic support, but those payments have been received inconsistent and untimely.
The defendant did not pay 1/2 the tuition for St. Mary's grammar school. Unfortunately at trial the plaintiff could not provide testimony concerning the amount owed.
Although the minor child does not require constant day care, the plaintiff must work. Consequently there are necessary expenses, including before and after school costs and summer care costs. Although the defendant might dispute some of these expenses, labeling them as extra-curricular rather than day care related, the fact remains that the plaintiff must have their daughter in a safe, secure environment while she is working. The defendant has not paid $463.50, a minimal fee given the needs of the child.
The defendant has neglected to pay his share of the orthodontia bills. He owes the plaintiff $132.00. Although the plaintiff had suggested that other sums are outstanding, she did not present any credible evidence concerning those expenditures. The post-trial affidavit is not a substitute for trial testimony or evidence.
The defendant's compliance with other court orders has been significantly deficient. He has failed to pay any portion of the mortgage or condominium assessment since April 2005. He did not forward his share of the minimum balances due each month for the couples' credit card bills, a total of $900. He has allowed his girlfriend to remain in the presence of his daughter during court-ordered visitation periods.
The defendant suggests that his failure is due, in part, to his lack of access to the financial materials that remain in the marital home. This theory is rejected. The defendant lived in that home for nine years. He was president of the condominium association. His new-found ignorance is incredible. He owes the plaintiff $5402.52.
Although the plaintiff has alleged that the defendant has failed to remain current in his obligation to the Internal Revenue Service, there is no credible evidence to support this contention. He does, however, owe the plaintiff $1,012 for payments she made in the past. Additionally the plaintiff alleges that the defendant has failed to pay his share of mandatory insurance premiums. Those premiums are for a car owned by the plaintiff. Under the terms of the January 2005 agreement the plaintiff was responsible for those premiums.
The defendant suggests that his failure to comply with court orders was not willful. He was aware of the orders. He has limited assets. He never filed a motion for modification. He was under the mistaken impression that the parties had modified their agreement in April 2005.
The defendant's financial affidavit reflects more debt than income. He has not squandered money. He is not hiding assets.
II. Motion for Contempt
Through her motion for contempt the plaintiff has asked the court to find that the plaintiff willfully violated the January 2005 order in that he failed to pay court ordered expenses and child support. She seeks costs and attorneys fees.
Connecticut procedure authorizes motions for contempt, one of the few vehicles available to enforce compliance with court orders. Acknowledging the broad equitable powers of this court, ". . . 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." (Citations omitted; internal quotation marks omitted.) Sgarellino v. Hightower, 13 Conn.App. 591, 595-96, 538 A.2d 1065 (1988). The burden of establishing a prima facie showing of contempt, in this case the willful disobedience of a court order, falls upon the plaintiff.
At hearing on these motions, the defendant testified that he attempted to meet his obligation, but had insufficient funds. There is no credible evidence here that the defendant "wilfully depleted his or her earnings with a view toward denying or limiting" the amount of alimony or support to be paid; Schmidt v. Schmidt, 180 Conn. 184, 190, 429 A.2d 470 (1980); or "wilfully restricted his earning capacity to avoid support obligations." Bleuer v. Bleuer, 59 Conn.App. 167, 170, 755 A.2d 946 (2000). However, the question before the court is quite narrow. This court is required to examine the January 2005 agreement and determine whether the defendant has complied.
The judgment of dissolution here is clear and unambiguous. The obligation to pay child support and expenses did not fluctuate. There was no suggestion in January that the provisions in that agreement were unfair or inequitable. Counsel represented both parties. Both parties acquiesced in each section of the agreement. "When a judgment incorporates [an agreement] in accordance with a stipulation of the parties, it is to be regarded and construed as a contract." Mihalyak v. Mihalycak, 30 Conn.App. 516, 522, 620 A.2d 1327 (1993) (citations omitted). This court cannot add conditions, however laudable, to the final judgment. Instead, it should enforce the terms of the original separation agreement, a contract crafted and adopted by the parties and approved by the court. D'Ascanio v. D'Ascanio, 237 Conn. 481, 489-90, 679 A.2d 469 (1996); DeMaria v. DeMaria, 47 Conn.App. 729, 734, 707 A.2d 741 (1998). Private settlement of marital financial affairs should be encouraged, not undermined.
To enforce the agreement the plaintiff seeks invocation of the court's contempt power, an especially harsh remedy. "To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001) (internal quotations marks omitted). A good faith dispute or legitimate misunderstanding can preclude a finding of willfulness. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001).
This court should decline to hold the defendant in contempt if the facts are not "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." (Internal quotation marks omitted.) Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994). Also, this court may, in its sound discretion, "deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." Gilbert v. Gilbert, 73 Conn.App. 473, 486, 808 A.2d 688 (2002) (internal quotation marks omitted). In the present case the burden is on the defendant to establish that he could not comply with the existing court order.
Court orders must be obeyed until modified or successfully challenged. Mulholland v. Mulholland, 229 Conn. 643, 649, CT Page 15468 643 A.2d 246 (1994); Lawrence v. Lawrence, 92 Conn.App. 212, 215 (A.2d (2005). Acknowledging the existence of a court order, the defendant argues that there was a modification of that agreement by the parties. He further claims that he was unable to meet his obligation.
Examining the issues presented, it is clear that the defendant substantially ignored all of his obligations under the agreement. It is also obvious that the decision was based upon economic considerations. These expenses are a factor the defendant should have anticipated at the time of the agreement.
Cost alone does not justify a decision to ignore a court order. Although the defendant made some effort to pay, it was too little too late. He chose to prioritize his creditors. He violated a court order and the conduct was intentional. There is no evidence that he could not comply at least in part. His suggestion that he is owed a credit is not supported by credible evidence.
The plaintiff's Motion for Contempt is granted. The defendant is ordered to begin payment of all court-ordered obligations immediately. At the time of trial there was an arrearage of $7,314.52. The defendant is further ordered to pay $50 per week toward the arrearage.
III. Attorneys Fees and Costs
Connecticut General Statutes § 46b-87 provides that once contempt for failure to comply with orders has been found in a family matter, the court may sanction a non-complying party through the award of attorney fees. See Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). In considering whether to award attorneys fees in this matter, this court has reviewed the evidence relating to all the motions that were the subject of this hearing, including the parties' financial affidavits and other evidence relating to actual income and earning capacity. In light of the foregoing, this court grants the request for attorneys fees in the amount of $1,000.