Opinion
No. FA99-0089747S
September 29, 2005
MEMORANDUM OF DECISION
THE COURT: For the record, this is the matter of Tracy A. Walsh vs. Patrick J. Walsh. The Docket Number is FA99-0089747S.
This is the articulation of the Court's decision concerning the plaintiff mother's motion to hold the defendant father in contempt of the Court.
The Court would note, as background reference to this matter, the parties were intermarried in the city of Middletown on 10/4/91. Of this marriage, two children were the issue — Ryan — d.o.b. 3/15/92 and Matthew d.o.b. 11/20/95.
The Court would note that, on 7/28/99, the plaintiff mother filed for divorce in this court. On 10/19/2000 the marriage was dissolved pursuant to an agreement before the Honorable Daniel Spallone. The Court adopted the agreement that the parties, through their counsel, had reached and incorporated it as part of the orders of the Court.
The plaintiff mother was the prime custodial parent of the two children and the agreement encompassed all aspects of the marriage and the divorce, including the issues of school vacation and parental custody, relocation of either parent and health insurance.
Subsequently, the plaintiff mother and the children relocated to the state of Florida. This occurred approximately May of 2001.
On 5/21/01, in this Court, the parents entered into a CT Page 12005-gt stipulated agreement concerning the divorce and the move to Florida.
On 5/21/01, again, in the Superior Court in Middletown before the Honorable Brian Fischer, the parties entered into a stipulation reflecting their agreement concerning the move. The Court incorporated that agreement into its decision, which could be considered a modification of the order entered by Judge Spallone.
This stipulation also encompassed the issue of custody of the children during the vacation period and health insurance. As previously indicated, the plaintiff mother remained the custodial parent.
The preponderance of the evidence shows that the defendant father was laid off from his employment at Hamilton Standard, effective 10/30/01.
The children's health insurance, as a result of his being laid off from his employment, was to terminate on 1/15/02. Pursuant to the agreement, he had been carrying the children on his insurance.
The defendant father did notify the mother that the children would no longer be insured on 10/31/01. There is a letter entered into evidence indicating that.
The evidence also notes that the defendant father remarried in November 2001 to Michelle Walsh.
The plaintiff mother put the children on her health insurance and paid $39 per week to insure them through her employment.
At the trial before this Court, the defendant father did not contest that the plaintiff mother paid $39 per week for health insurance for the two children.
Subsequently, the defendant father found new employment at an establishment known as City Fish. He commenced this employment in February 2002. His employer was his father-in-law — Michelle's father.
The evidence also notes that, on 8/28/02 and 9/1/02, CT Page 12005-gu the plaintiff mother sent e-mails to the father concerning the issue of health insurance for the children. On 9/3/02, the defendant father responded and indicated that he was unable to obtain health insurance, indicating that it was unavailable at a reasonable cost at his employment.
Subsequently, during the trial, the father testified that getting health insurance for his two children would cost him approximately $10,000 per year.
On 6/6/03, Michael — the issue of the defendant father and Michelle — was born. The preponderance of the evidence shows that this child was insured through the father's employment at City Fish from birth.
On 6/17/04, the defendant father notified the plaintiff mother that he would withhold his required payment on Ryan's psychotherapy until he was permitted to be involved in the psychotherapy and until he had access to certain information concerning the psychotherapy.
He also indicated that he would pay no more than 44% of the co-pay of $25 per visit, since the plaintiff mother had taken the child to a service provider which was out of the health network.
The plaintiff mother, through counsel, filed a motion to hold the defendant father in contempt in this court on 7/21/04. The evidence notes that the defendant father then placed Ryan and Matthew on his health insurance, effective 8/1/04.
The Court would also note that on 8/15/03, in Superior Court before the Honorable Alan Steele, Family Magistrate, that the Court ordered that both parties take out medical insurance on the children and that the parties share all unreimbursed expenses at the rate of 56% to 44%, retroactive to 7/10/03.
The Court would note that the 56% was to be borne by the custodial parent — the mother — and the 44% be borne by the father.
On 8/6/04, the plaintiff mother and counsel refused to CT Page 12005-gv participate in a deposition. The reason given for refusing to participate in the deposition, as indicated at trial, was that the new wife of the defendant father — Michelle Walsh — was present for the deposition.
On 8/28/05, trial commenced before the Honorable Elpedio N. Vitale, a Judge of the Superior Court. That trial was not completed on that day and, subsequently, the matter was referred to this Court for trial.
The trial was held and completed on 7/25/05. The Court would also note that, on 8/9/04, before the Honorable Barbara Quinn, the Court ordered that Michelle was not to be present for any depositions.
The Court would, also, note that the parents did file in court, on 3/28/05, financial affidavits.
During the course of the trial, the plaintiff mother and counsel outlined, essentially, five separate areas where they sought redress concerning their Motion for Contempt.
The first area related to the respondent father's failure to maintain health insurance on the children. A fair preponderance of the evidenced shows that the father was responsible, pursuant to the agreements, to maintain health insurance on his sons.
The evidence shows that he failed to do so from 1/15/02 through 8/1/04. The Court finds as a pivotal factor in judging the nature of the father's behavior to be the fact that he put Michael on his health insurance at birth on 6/6/03 but he failed to put his other children on the health insurance until 8/1/04, after the contempt motion had been filed.
Based on the fair preponderance of the evidence, this Court finds that the defendant father's failure to maintain health insurance from 1/15/02 through 8/1/04 was, in fact, a violation of valid court orders, which had been entered on 10/15/02, 5/21/01 and 8/19/03.
The Court finds that these orders were clear and expressed directions of the Court. CT Page 12005-gw
The Court would cite the cases of Eldridge v. Eldridge, 244 Conn. 523 and Blaydes v. Blaydes, 187 Conn. 464.
The Court finds, again, by a fair preponderance of the evidence, that the defendant father was clearly aware of the Court orders. The Court would cite Calway v. Calway, 26 Conn.App. 737.
The movant — the plaintiff mother — has shown the existence of the order and has also shown noncompliance, again by a preponderance of the evidence. Statewide Grievance Committee v. Zadora, 62 Conn.App. 828.
However, the Court, while making a finding of contempt, must also address the issue of willfulness. The plaintiff mother must show a willful noncompliance with the court order.
Noncompliance alone will not support judgment of contempt, Prial v. Prial, 67 Conn.App. 7, also, Wilson v. Wilson, 38 Conn.App. 263; Niles v. Niles, 9 Conn.App. 240; and Shepherd v. Shepherd, 80 Conn.App. 202.
In this particular matter, the issue of willfulness as it relates to the health insurance is a bit complicated. Although the plaintiff mother has shown noncompliance in a valid court order, the defendant has shown, by a preponderance of the evidence, that part of the noncompliance was, in fact, not willful.
The Court finds that the defendant's failure to pay, from the beginning of the time period 2/15/02 through 6/6/03, was not willful in view of his employment status and in view of the evidence put forth concerning the expense.
The orders indicated that the father was to maintain insurance at a reasonable cost. Clearly, $10,000 a year, based on his financial circumstances, was not reasonable.
The inability of the defendant to obey an order of the CT Page 12005-gx Court without fault on his part is a good defense to the charge of contempt, citing Tobey v. Tobey, 165 Conn. 742. Also, see Tatro v. Tatro, 24 Conn.App. 180.
However, the preponderance of the evidence shows that the defendant father's behavior subsequent to 6/6/03 was, in fact, willful and, therefore, places him in contempt of court orders.
The Court finds that the father was, in fact, able to obtain insurance at a reasonable price, as indicated by the fact that he placed his youngest child Michael on it. The financial affidavits and the testimony indicate what the cost was.
Based on this showing of willful contempt, the Court will not fine him. However, the Court will enter orders designed to make the plaintiff mother whole.
The Court will order that the defendant father will pay the cost incurred by the plaintiff mother to insure the children for the entire period of time, even though part of the time period was, in fact, not contemptuous.
The Court, in its authority, does have the remedial powers to make a party whole as a result of any suffering due to the failure of another party to comply with a Court order. See Nelson v. Nelson, 13 Conn.App. 355. Also, Fitzgerald v. Fitzgerald, 16 Conn.App. 548.
The Court, having reviewed the evidence and the financial affidavits in reference to this matter, orders that the father will pay $6,126.12.
The Court will next move on to the issue of failing to pay for Ryan's therapy costs.
The plaintiff mother is seeking that the father be found in contempt, based on his failure to pay his share of the unrecompensated therapy costs for Ryan.
The defendant father has countered in mother's argument by indicating that the plaintiff mother took the child out of network to find a therapist and incurred a higher co-pay and indicates that the orders CT Page 12005-gy do not require him to cover the higher co-pay.
The preponderance of the evidence shows that the defendant father's behavior was, in fact, in violation of valid Court orders and was willful. Therefore, the Court will find him in contempt of court for this behavior.
The, exhibits and the testimony show that the defendant father refused to pay because he wanted to be involved in Ryan's therapy and that he wanted access to certain information. See Plaintiff's Exhibit 5, as well as testimony of the mother.
The father's conduct was not contemplated nor allowed by any of the orders. This conduct was clearly willful.
If the defendant father was unhappy with the circumstances of the child's therapy, the proper avenue could have been to come to Court to seek a modification. His refusal to pay and, essentially, holding the plaintiff mother at hostage is not to be allowed nor tolerated.
The Court finds that this order was not ambiguous, citing again, Eldridge v. Eldridge, and Behrns vs. Behrns, 80 Conn.App. 286.
The Court, however, does find the defendant father's argument concerning the amounts that he should be required to pay to be valid. The 5/21/01 order indicates that a parent who goes out of network shall be responsible for whatever unreimbursed expenses that may be occurred due to the parent's election in the absence of the consent of the other parent.
The Court finds that the plaintiff mother chose a nonparticipating service provider for Ryan's therapy. The Court finds that there was a participating service provider reasonably available, based on the testimony of the plaintiff mother concerning the prior service provider.
The Court finds that the defendant father did not consent to this arrangement. Therefore, the 5/21/01 CT Page 12005-hz order holds that the parent choosing a nonparticipating service provider must be responsible for the unreimbursed expenses incurred without the consent of the other parent.
Therefore, the Court will order as follows. The mother had sought payment of $339, which represented 44% of the unreimbursed costs for the therapy.
The Court will order that the father pay $286, which reflects 44% of a $25 co-pay as opposed to a higher co-pay.
The Court will move on to the issue of daycare for Matthew. The plaintiff mother is seeking $1,359 for daycare expenses she incurred. She indicated that the father had failed to exercise his visitation during the summer months and the daycare was necessitated by her employment.
First, the Court must indicate that it does not find the father in contempt with regards to this particular behavior. The orders in question do not require the father to exercise his privilege to have his children at his home during the first half of the summer months. It indicates that he is entitled to it.
However, the Court is allowed broad discretion in fashioning solutions to resolve problems in family court situations. The Court would, again, cite the Fitzgerald v. Fitzgerald case.
The Court believes that equably the father should share in those expenses. Therefore, the Court will order that the father will pay 44% of the $1,359 that was sought by the plaintiff mother. That comes out to $597.96.
The Court would note that, as part of the 5/21/01 order, the parties agree to deviate from the guidelines.
The Court would, therefore, conclude that that agreement to deviate would apply to this issue.
The Court moves on next to attorneys fees. The CT Page 12005-ha plaintiff mother has sought $3,000 in attorneys fees to cover the cost of litigating this matter and including the deposition of 8/4/04.
The Court, having found the defendant father in contempt of Court and having reviewed the relative financial abilities and criteria, as contemplated by Connecticut General Statute Section 46b-62, will make an award of attorneys fees in this matter.
The Court notes that, under Connecticut statutory law, a finding of contempt is necessary in order to award attorneys fees.
The Court, also, finds that the amount to be awarded is reasonable, pursuant to 46b-62 and the criteria as listed in the relevant case law. See Grimm v. Grimm, 82 Conn.App. 41. Also, Bee v. Bee, 79 Conn.App. 783. The Court did review the financial affidavits, which had been filed with the clerk on 3/28/05. The Court also considered the testimony of the parties concerning their present financial situation and found that the plaintiff mother lacks sufficient liquid assets to pay the fees and that a failure to award fees would undermine the Court's other financial orders.
The Court notes that the awarding of the attorneys fees is not punitive and cites Foster v. Foster, 84 Conn. 311.
The Court, having reviewed the fees and taken into consideration what is considered reasonable in this area, makes a total award of attorneys fees of $2,000.
The Court will finally cover the area concerning expenses. The plaintiff mother sought reimbursement of travel expenses necessitated by prosecuting this litigation.
Although this expense is not covered in the various orders and, therefore, as not contemptuous behavior, the Court notes that it has broad discretion to make whole any party that has suffered as a result of another party's failure to comply with a Court order, again, citing Nelson v. Nelson and Fitzgerald v. Fitzgerald. CT Page 12005-hb
The Court has considered the relevant financial positions of the parties. The Court does order payment of $1,000 as reasonable recompensation of the expenses concerning travel, which the plaintiff mother has incurred in this matter.
The Court declines to order restitution of the lost wages.
The Court will order that payment will be made to the plaintiff's attorney as trustee on or before February 1st, 2006. The payments will be made in monthly payments to be made on the 1st of the month for each of those months, in equal amounts, starting October 1st of 2005.
The Court would note that, in two of the months in question, the 1st falls on a Sunday. Therefore, if payment is received by close of business on the next business day, that will satisfy the Court order.
Any remaining issues in this matter should be left to other more appropriate motions concerning modification.
Thus ends the Court's decision in the matter of Walsh v. Walsh.
I would ask that the monitor type up a copy of this decision at her convenience for my signature.
Thank you very much.
CERTIFICATION
I hereby certify the foregoing pages are a true and correct transcription of the tape recording of the above-referenced case, held in Superior Court Judicial District of Middlesex, Middletown, Connecticut, before the Honorable Carl E. Taylor, on the 13th day of September 2005.
Dated this 28th day of September 2005 in Middletown, Connecticut.
Penny M.A. Schonvisky CT Page 12005-hc
Court Recording Monitor CT Page 12005-hd