Lori J. Gardner v. Charles F. Gardner (2009)

MEMORANDUM OF DECISION

The plaintiff has filed a post-judgment motion of contempt alleging that the defendant willfully has failed to pay his portion of health insurance premiums, medical co-payments and other expenses for their daughter.   A hearing was held on September 17, 2009, at which both parties were represented by counsel.

After careful consideration of all the testimony and exhibits, the court makes the following findings of fact and conclusions of law.

Pursuant to a written agreement, a judgment of dissolution of the marriage between the parties was entered in January 1997.   There was one minor child born of the marriage who was born on December 3, 1992.   The agreement provided in pertinent part as follows:

8.  CHILD SUPPORT:  The defendant husband shall pay to the plaintiff wife as child support a sum in accordance with the Connecticut Child Support Guidelines which shall not be below one-half of the minor child's tuition payment and one half of the minor child's health insurance premium.

The parties agree to split equally the cost of the minor child's clothing, school programs, extracurricular activities, etc.

9. DEBTS:  Neither party shall make any contracts nor incur any debts on the name of the other, each party agreeing to be separately responsible and to hold the other party or his or her estate harmless from any claims, judgments or expenses incurred for any such debts of contract obligations arising from and after their separation except as specifically provided herein ․

12.  MEDICAL:  The plaintiff wife shall maintain medical insurance for the minor child, with the parties splitting equally the cost of the premium.

The defendant husband and plaintiff wife shall divide equally all co-payments and un-reimbursed medical, optometry, dental, and prescription drug expenses for the minor child.

22. AGREEMENT AS TO LIABILITY:  Each of the parties hereto agrees that she or he, as the case may be, will not contract or incur any liability on behalf of the other and that each will not obligate or engage the credit of the other party in any manner whatsoever.   It is particularly agreed, and it is the intention of this Agreement, that each party hereto shall manage, handle, control and deal with her or his own property and the fruits of her or his own labors to the extent and in the same manner as though the parties hereto had never married.

At some point after the dissolution, the plaintiff asked the defendant to contribute an additional $45 a week in basic living expenses, which he did.   The reason for this increase was never reduced to writing nor made an order of the court.   Not surprisingly, the parties are at odds over what this money was supposed to cover.   The defendant claims this extra support money was supposed to cover things like clothing and other expenses.   The plaintiff seems to suggest that the reason for the extra payments was that for a protracted period of time the defendant had no contact with the minor child, which resulted in less expenses for him and more expenses for the plaintiff.

Also at some point thereafter, the defendant suffered a loss in job earnings.

The plaintiff makes no claims to any moneys prior to January of 2008.   She claims, however, that since that time the defendant has failed to pay one-half of the insurance premiums, which amounts to $1,308.88;  one-half of the medical co-pays, which amounts to $680.00;  one-half of certain medical prescriptions that she decided not to submit to the insurance company because of the nature of the prescription which amounts to $530.00;  one-half of the child's clothing which amounts to $1,343.82;  and extra curricular activity and educational expenses which amount to $2,239, part of which is attributable to two classes that the child took at Harvard during the summer of 2008, of which the defendant's half allegedly comes to $1,475 for tuition and $184.00 for text books.   To pay for these summer classes, the plaintiff took out a loan which she is now paying back at a rate of $47.00 a month.   The plaintiff claims that the total amount owed to her is $6,106.70

The defendant admitted that he did not pay the insurance premiums and co-pays for the period in question.   He testified that he did not because the child was also covered on his health insurance for free and therefore the plaintiff should have availed herself of his coverage rather than using hers.   The defendant further claims that the plaintiff made a unilateral decision to send the minor child to summer school at Harvard and that she was required by the dissolution agreement to consult with him before entering into such a financial commitment on behalf of the child.   While the defendant admits that the child did well at Harvard and that is was to her advantage to attend, he also claims that taking two summer classes there was excessive and that he should only pay for one class.

The defendant testified that he made 72 weeks of said “extra” payments, from January 2008 to May 2009 which he claims is a total of $3,240.   He argues that this amount should be deducted from any amount that the plaintiff may be awarded.   He makes no claim to any “extra” moneys that were paid prior to January 2008.

It is clear that the defendant was required to pay one-half of the health insurance premiums and any unreimbursed medicals and co-pays.   He willfully did not do so.   Therefore, this court finds the defendant in contempt but only as to the non-payment of the health insurance premiums and the unreimbursed medicals and co-pays that were submitted to the insurance company, which the court finds to be in the amount of $1,988.88.   The court does not find the defendant in contempt for the non-payment of the prescriptions that the plaintiff unilaterally chose not to submit to the insurance company.

The court does not find the defendant in contempt for non-payment of the clothing for the minor child because it is not convinced that the non-payment was willful in light of the “extra” $45.00 that the defendant had been paying.   The court does find, however, that he owes the plaintiff $1,343.82 as his share of the clothing bill.

The court does not find that the defendant in contempt for the non-payment of his share of the educational and extracurricular activities bill because the court is not convinced that is was willful in light of the “extra” $45.00 payments, and because the plaintiff acted in a unilateral manner in making the financial commitment to send the minor child to two Harvard summer classes.   Although it is a close question, the court does find that the defendant is nonetheless responsible for the tuition and book fees and therefore he owes the plaintiff $2,239.00.   Against this, the court finds that the defendant should have a set-off of $3,240.00 due to the “extra” child support payments.   Therefore, the defendant owes the plaintiff $1,331.70 which must be paid within 30 days of the issuance of this decision.

Due to the defendant's willful contempt the court orders him to pay the plaintiff's attorneys fees in the amount of $1,500 which the court finds to be reasonable and appropriate under the circumstances.   The court declines to award any other attorneys fees.

SO ORDERED.

BY THE COURT

J. Fischer, J.

Fischer, Jack W., J.