Opinion
TTDFA156009197S
01-15-2019
Richard YANICKY v. Kathleen O’CONNOR
UNPUBLISHED OPINION
Armata, J.
BACKGROUND AND HISTORY
This matter came to the court’s attention by virtue of various motions filed by the parties. Plaintiff filed two motions for modification (Entry No. 307, 311) which are identical in nature, but are dated February 8, 2018 and June 20, 2018 respectively. The defendant filed a motion for attorney fees (Entry No. 314), a motion to compel (Entry No. 317), and a contempt citation (Entry No. 322). The court held a hearing on these motions on December 13, 2018, where both parties were present and represented by counsel.
The plaintiff filed the identical motion on two separate dates: February 8, 2018 and June 20, 2018. The plaintiff seeks retroactivity of any court order relative to child support or alimony to February 8, 2018, the date of his first motion.
By way of background, the parties were divorced on February 24, 2016. Pursuant to the terms of that agreement, which became the judgment of the court, the plaintiff was ordered to pay child support in the amount of $ 300 per week for the two minor children. The judgment specifically provided "[c]hild support for each child(ren) shall terminate when said child reaches the age of eighteen; provided however, that if said child reaches the age of eighteen and is still attending high school on a full time basis, child support shall continue until said child graduates from high school or reaches the age nineteen, whichever shall first occur." The judgment further goes on to provide that "[s]aid child support may deviate from the Child Support Guidelines because of the payment of alimony to the Wife. Since the payment of child support has been reduced, in part, because of the alimony payment, a termination of, or modification in, alimony shall be grounds to modify the child support." Additionally, the judgment provides that "[t]he Husband shall ... pay to the Wife as periodic alimony the sum of $ 300 per week until the Husband reaches the age of sixty-five on November 30, 2028." Further, the judgment provides that "[s]aid alimony shall be subject to modification, alteration, suspension or termination pursuant to [General Statutes] § 46b-86(b). Said alimony shall be subject to review at such time as Husband’s child support obligation terminates."
In his motions for modification, the plaintiff alleges that "[s]ince the entry of the above referenced child support and alimony order(s), the Plaintiff-Father’s employment and income have changed substantially." The plaintiff claims that he can no longer afford the aforementioned orders. The plaintiff seeks a modification of both the child support and alimony orders. At the hearing, the plaintiff testified as to his educational history, that he was working on master’s degree on-line, and as to his employment history. At the time of the judgment, the plaintiff was working for Inventiv as a programmer and that he voluntarily left that employment in September 2016. The plaintiff then obtained contract work with AT & T, through his company MacroSoft, where he helped develop statistical models and was a "1099" employee. The plaintiff’s contract ended with AT & T in July 2018 and on May 5, 2018, he obtained employment with University of California as a bio informative researcher, thereby working both jobs for a period of time. The plaintiff testified that he was coming off his probationary period in December 2018 and that he maintains two residences: one in California and one in Connecticut wherein his eldest son is residing. The plaintiff also testified that during the time he was contracting with AT & T he could work remotely. The plaintiff also indicated on cross examination that he can continue to work through his company while maintaining his current employment. The court found the plaintiff’s testimony credible.
While the defendant agrees to the modification of the child support based on the parties’ middle child reaching the age of majority, she objects to a reduction in alimony, indicating that she relies on to the agreed payment amount. The defendant testified that the plaintiff, who did not like Connecticut, always wanted to relocate to California and that she is currently working four jobs: as an administrative assistant at the University of Connecticut; for the Town of Mansfield, does dog walking and teaches spinning classes. The defendant further testified that while she is in generally good health, she does suffer from "bad bones" or Osteopenia. The defendant testified that she lives frugally, does not have cable, and needs to make serious house repairs including remediating mold issues. The defendant further testified, that her minor daughter, Emma, and middle child, Cameron, who is in college, reside with her. The court found the defendant’s testimony credible.
In her motions, the defendant seeks the plaintiff to pay attorneys fees (Entry No. 314), to compel the plaintiff to comply with her request for mandatory disclosure and production (Entry No. 317), and that the plaintiff be held in contempt for his failure to pay the court-ordered child support and alimony since November 1, 2018 (Entry No. 322).
STANDARD OF REVIEW AND APPLICABLE LAW
"[General Statutes § ] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When ... the disputed issue is alimony [or child support], the applicable provision of the statute is § 46b-86, which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change of the circumstances of either party ... Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order." (Footnote omitted; internal quotation marks omitted.) Olson v. Mohammadu, 310 Conn. 665, 671-72, 81 A.3d 215 (2013); see also Fulton v. Fulton, 156 Conn.App. 739, 746, 116 A.3d 311, 315 (2015).
Section 46b-86. (formerly section 46-54). Modification of alimony or support orders and judgments.
(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen percent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before, on or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law. No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50. If a court, after hearing, finds that a substantial change in circumstances of either party has occurred, the court shall determine what modification of alimony, if any, is appropriate, considering the criteria set forth in section 46b-82.
As to the defendant’s motion for contempt, before a contempt finding can be made, the court "must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt." Hall v. Hall, 182 Conn.App. 736, 746, 191 A.3d 182, 189, cert. granted, 330 Conn. 911, 193 A.3d 48 (2018). "To impose contempt penalties, whether criminal or civil, the trial court must make a contempt finding, and this requires the court to find that the offending party wilfully violated the court’s order; failure to comply with an order, alone, will not support a finding of contempt ... Rather, to constitute contempt, a party’s conduct must be wilful ... A good faith dispute or legitimate misunderstanding about the mandates of an order may well preclude a finding of wilfulness. Whether a party’s violation was wilful depends on the circumstances of the particular case and, ultimately, is a factual question committed to the sound discretion of the trial court. Without a finding of wilfulness, a trial court cannot find contempt and, it follows, cannot impose contempt penalties." (Internal quotation marks omitted.) O’Brien v. O’Brien, 326 Conn. 81, 97-99, 161 A.3d 1236 (2017). "[U]nder Connecticut law, such proceedings should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015).
FINDINGS AND ORDERS
The court, having considered all evidence presented at the hearing including the testimony of the parties and the exhibits submitted, as well as all statutory criteria and applicable case law, finds the following.
1. The Plaintiff’s Motions for Modification RE Child Support (Entry No. 307, 311)
As to the plaintiff’s motion for modification relative to child support, the court finds that Cameron has reached the age of eighteen on November 28, 2018. Accordingly, the plaintiff is no longer required to pay child support for him from that date. Pursuant to General Statutes § 46b-84(b), "[i]f there is an unmarried child of the marriage who has attained the age of eighteen and is a full-time high school student, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first." Because of the parties’ middle child aging out, a recalculation of the child support under the guidelines is necessary. "The obligation of a parent to support a child terminates when the child attains the age of majority, which, in this state, is eighteen." Cariseo v. Cariseo, 190 Conn. 141, 142, 459 A.2d 523, 524 (1983).
Both parties admit that Cameron, who is a freshman in college, attained the age of eighteen on November 28, 2018. Both parties submitted child support guidelines, calculating the support for their one child, Emma. The plaintiff’s exhibit, which shows the presumptive amount of support plaintiff should pay is $ 229, whereas defendant submitted child support guidelines, and the defendant’s exhibit, which shows the presumptive amount of support plaintiff should pay is $ 236. The court finds, having been presented with no evidence as to any deviation criteria, that the application of the child support guidelines is fair, appropriate and required. Accordingly, the court orders the plaintiff to pay child support in the amount of $ 230 per week, said order being retroactive from November 28, 2018, the date of Cameron’s eighteenth birthday.
In the plaintiff’s exhibit, the child support guideline submitted by the plaintiff, he uses gross income of $ 2, 111 for the plaintiff and $ 1, 097 for the defendant, whereas on the defendant’s exhibit, the child support guideline submitted by the defendant, she uses gross income of $ 2, 243 for the plaintiff and $ 1, 207 for the defendant.
2. The Plaintiff’s Motions for Modification RE Alimony (Entry No. 307, 311)
As to the plaintiff’s motion for modification relative to alimony, a review of the financial affidavits at the time of judgment and as presented to the court at the time of this hearing is necessary to adjudicate the plaintiff’s claim that there has been a substantial change in circumstances in that he changed his employment and that he cannot afford the existing court orders. Per the plaintiff’s financial affidavit, at the time of judgment, he showed gross income of $ 1, 499 per week, with a net income of $ 1, 100 per week; weekly expenses and liabilities of $ 1, 507, additionally, the plaintiff show assets of $ 1, 054, 323 and liabilities of $ 172, 672. Presently, the plaintiff shows the following: gross income of $ 2, 041 per week, with a net income of $ 1, 506 per week; weekly expenses and liabilities of $ 1887. , Additionally, the plaintiff shows assets of $ 1, 080, 000 and liabilities of $ 212, 200. "A court is entitled to rely upon the truth and accuracy of sworn statements required by ... the Practice Book ..." Billington v. Billington, 220 Conn. 212, 219-20, 595 A.2d 1377 (1991). "When presented with a motion for modification of alimony or support orders, the court must first determine whether there has been a substantial change in financial circumstances of one or both of the parties." Coury v. Coury, 161 Conn.App. 271, 282, 128 A.3d 517 (2015); see also General Statutes. § § 46b-82, 46b-86(a).
The plaintiff on his financial affidavit indicated that he "also receives per diem pay of $ 980 per week. Per diem payments are not considered wages (they are reimbursement for expenses) and are non-taxable. Note: the expenses that are reimbursed by the per diem pay are not included on this Affidavit." Accordingly, the court finds that the plaintiff’s gross income at the time of judgment was $ 1, 499, notwithstanding that a different gross income amount was shown on the child support guidelines submitted at the time of judgment.
Per the child support guidelines submitted by the plaintiff, he reports a gross income of $ 2, 111 for himself.
Included in the plaintiff’s expenses are $ 310 a week for children’s education, for which the parties had already committed significant savings, a contribution to his retirement of $ 126, and $ 300 for alimony and $ 300 for child support.
Based on the foregoing, notwithstanding the plaintiff’s change in employment, the court cannot find, by a preponderance of the evidence, that there has been a significant change of circumstances relative to a decrease in his income so as to warrant a downward modification of the agreed-upon alimony. Accordingly, the motion is denied and the alimony is to remain at the previously ordered rate of $ 300 per week.
3. The Defendant’s Motion to Compel (Entry No. 317)
As to the defendant’s motion to compel the plaintiff to comply with her request for mandatory disclosure and production (Entry No. 317), the court finds the motion moot, and no claim or evidence was presented at the hearing relative to this claim. It is also noted that the plaintiff served the same mandatory request for disclosure and production of the defendant, to which she responded late with her disclosure. Accordingly, the defendant’s motion is denied.
On February 1, 2018, the plaintiff served upon the defendant a request for mandatory disclosure and production and as of October 17, 2018, the requests had not been complied with. See Entry No. 320.
4. Defendant’s Contempt Citation (Entry No. 322)
As to the defendant’s contempt citation (Entry No. 322), the court finds that there was valid, unambiguous order requiring the plaintiff to pay child support of $ 300 per week and alimony of $ 300 per week, until either modified or terminated by the court. The plaintiff admitted he intentionally failed to make those payment since November 1, 2018 because he claimed he could not afford the payments, notwithstanding having access to funds to make the payments. The court notes that the plaintiff did tender to the defendant a $ 300 payment at the time of the hearing.
The court heard evidence about withdrawals taken by the plaintiff from his various accounts to pay what he considered valid obligations.
"A party to a court proceeding must obey the court’s orders unless and until they are modified or rescinded, and may not engage in ‘self-help’ by disobeying a court order to achieve the party’s desired end." (Internal quotation marks omitted.) O’Brien v. O’Brien, supra, 326 Conn. 97.
Based on that violation and admission, the court finds by clear and convincing evidence that the plaintiff’s action were wilfull and he is found to be in contempt. The court finds that the plaintiff owes the defendant $ 3, 160 through December 13, 2018, the time of the hearing, together with any additional sums owed to date of this decision. Said arrearage shall be paid within ninety days of the date of this decision.
The court calculates the arrearage as follows: four weeks of child support (November 1, 2018 to November 28, 2018) at $ 300 per week, plus two weeks of child support (November 29, 2018 to December 13, 2018) at $ 230 per week, plus six weeks of alimony at $ 300 per week, for a total child support and alimony owed of $ 3, 460, less the $ 300 paid at the time of the hearing, for an arrearage of $ 3, 160.
5. The Defendant’s Motion for Attorney Fees (Entry No. 314)
Pursuant to General Statutes § 46b-62, the defendant makes a claim for $ 15, 000 in attorneys fees. "[Section] 46b-62 authorizes the trial court to award attorneys fees when appropriate in light of the ‘respective financial abilities’ of the parties. Whether to allow counsel fees, and if so in what amount, calls for the exercise of judicial discretion." Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 144 (1972). "In exercising its broad discretion it is appropriate for the court to consider the statutory criteria set out in General Statutes § § 46b-62 and 46b-82 and the respective financial abilities of the parties." Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587, 591 (1983).
Reviewing the requested claim for attorney fees, which the court does not consider reasonable, as well as the financial affidavits submitted on December 13, 2018, the court finds that the defendant is in a better financial position than the plaintiff due to the defendant’s greater net worth. Accordingly, the plaintiff’s request for attorneys fees is denied.
Per the defendant’s financial affidavit, at the time of judgment, she showed gross income of $ 1, 071 per week with a net income of $ 812 per week; weekly expenses and liabilities of $ 1, 270, additionally, the plaintiff show assets of $ 1, 019, 552 and no liabilities. Presently, the defendant shows the following: gross income of $ 1, 097 per week, with a net income of $ 901 per week; weekly expenses and liabilities of $ 1, 251, additionally, the plaintiff show assets of $ 1, 355, 923 and no liabilities.
The court notes that although it did find the plaintiff in contempt relative to certain claims made by the defendant, the court did not impose sanctions for the plaintiff’s contemptuous behavior. The court does, however, reserve the right to impose sanctions against the plaintiff, including possible incarceration, if the orders are not complied with.
SO ORDERED.