Steven Simes v. Susan Simes (2009)

MEMORANDUM OF DECISION

On September 8, 2006 the court (Abery-Wetstone) dissolved the marriage of the parties incorporating by reference the Separation Agreement of the parties dated September 7, 2006.   Shortly thereafter by agreement of the parties the defendant relocated to Florida with the two minor children issue of the marriage.   Subsequent thereto the defendant filed a Motion for Contempt dated November 17, 2006 # 295 claiming that the plaintiff failed to comply with Article 7.1 of the Separation Agreement relating to the amount of life insurance for the wife and two children.   On November 30, 2006 the defendant filed a second Motion for Contempt # 297 alleging that the plaintiff failed to comply with Articles 6.1, 6.2 and 6.3 of the Separation Agreement relating to equivalent health insurance, reimbursement issues and a request for an “evergreen fund” per year for future reimbursement of medical and dental funds.   The defendant then filed an Amended Motion for Contempt and for Modification, Post-Judgment dated September 27, 2007 # 328, realleging the facts of motion # 297 but claiming in addition a substantial change in circumstances sufficient to warrant a modification of the terms of the health care provisions of the separation agreement.

The provisions of the agreement subject to the motions are as follows;

Life Insurance

7.1 The Husband shall continue to maintain the policies listed on his financial affidavit (or their respective equivalent) and shall keep them in full force and effect designating the Wife as the primary beneficiary of $150,000 of death benefits payable to the Wife in a lump sum upon the Husband's death for as long as he shall be obligated to pay her alimony pursuant to Article 4 hereof and for so long as he has an obligation to support or educate a child, the Husband shall designate the child(ren) as the primary beneficiary of $350,000 each of such insurance to the extent permitted by law.

7.2 The Husband agrees to furnish the Wife, upon her request, proof that he is insured in the specified amounts and that the beneficiary of said insurance policies is as required by this agreement.

Health and Dental Insurance

6.1 The Husband shall keep and maintain health and dental insurance as presently in place, or their respective equivalents, for the benefit of the children for as long as he is obligated to support or educate the child(ren) pursuant to provisions of this Agreement, but in no event after a child attains the age of twenty-three (23) years.   The Husband agrees to furnish the Wife with copies of all such policies upon her request and to provide her with proof that such policies are in force and that the beneficiaries are those agreed upon.

6.2 In addition to the foregoing obligation of the Husband, the Husband shall promptly pay for the benefit of the child(ren) 50% percent of the unreimbursed reasonable medical, optical, surgical, hospital, psychiatric, psychological and nursing expenses, and the cost of prescriptive drugs (“medical expenses”) and dental and orthodontia expenses so long as he is obligated to support or educate the child(ren) with respect to whom the expense is incurred as provided in this Agreement.   The Wife shall pay 50% percent during said time period.

6.3 Should the child(ren) need any elective medical, optical, dental, orthodontia, psychiatric or psychological care, the Wife shall notify the Husband of such need, prior to having such care given, except in the case of emergency or routine care.   Absent an emergency, the mother will make best efforts to take the children to medical providers approved by the father's insurance carrier, and absent reasonable agreement of the father or an order of a court of competent jurisdiction, if she uses such a provider, she shall pay the parental responsibility not covered by the insurance.

Paragraph 7.1 of the separation agreement clearly and unequivocally states that the husband shall continue to maintain the policies listed on his financial affidavit and shall keep them in full force and effect designating the wife as primary beneficiary of $150,000 of death benefits ․ the husband shall designate the children as the primary beneficiary of $350,000 each.   Simple addition mandates the conclusion that the total insurance ordered is $850,000.   The current beneficiary designation does not satisfy the mandate of the agreement.  (Exhibit 3.) Testimony of Ms. Georghette Geller-Petro, AXA Charter Life Underwriter and Charter Financial Consultant established that the beneficiary designation language came from the plaintiff despite his testimony to the contrary.  [T. 10/4/07 p. 51, T. 1/15/09 p. 49.]   The court finds that Mr. Simes willfully changed the language of designation of beneficiary in order to exercise control and to purposely thwart his ex-wife.   The court finds the plaintiff to be in contempt.

The construction and interpretation of Paragraphs 6.1, 6.2 and 6.3 consumed multiple days of hearing.   The plaintiff continually tortured the plain meaning of the English language, frequently disrupted the proceedings with nonsensical arguments and objections to the frustration of the defendant, her counsel and at great expense of time and judicial resource.

At one point during a colloquy between the court and Mr. Simes the court stated as follows;

THE COURT:  The issue before The Court is whether or not Mrs. Simes was provided with knowledge concerning the insurance coverage, whether or not you willfully withheld that knowledge, whether or not she was properly able to file claims pursuant to the policy and whether or not she was properly reimbursed, all pursuant to the separation agreement.

Evidence presented on various days of hearing clearly establish a continuing course of conduct by Mr. Simes to withhold information from the defendant.   The coverage existing in Connecticut on the day of the separation agreement is not the same coverage in Florida.  [T. 5/29/07 p. 34.]   Mrs. Simes testified credibly that when questioned concerning coverage Mr. Simes' response was “you moved out of state, you have to deal with it.”  [T. 5/29/07 p. 40.]   Further Aetna would not speak with her because he was the policy holder.  [T. 5/29/07 p. 44.]   All reimbursements from the insurance company were sent to him and he did not reimburse her the 50% required by the separation agreement.   Instead he calculated his 50% based on the UCR and provided Mrs. Simes with voluminous documentation relating to calculations.  [T. 5/29/07 pp. 56, 58, 61, 62, T. 7/27/07 pp. 53, 56, 61.]   Mail sent to Mr. Simes was returned unclaimed.  [T 5/29/07 p. 64.]   Mr. Simes never helped her with any communication concerning insurance.  [T. 5/29/07 pp. 64, 69.]   With reference to a specific problem regarding an infection in the son's tooth, a problem requiring immediate medical attention, Mr. Simes refused to cooperate.  [T. 7/27/07 pp. 70-73.]

Throughout the course of the proceedings, Mr. Simes insisted repeatedly, contrary to the evidence, that the plan in place under the separation agreement provided the same coverage in Florida as existed in Connecticut [T. 7/27/07 pp, 80-81.]   Corrine Esqualin from Healthnet testified extensively concerning network providers and multiplan providers.   In direct response to a question from Attorney Barndollar whether the plan in Connecticut provides the same service or the same costs in Connecticut, her response was it does not.  [T. 10/3/07 pp. 41-96.]   The defendant is now responsible in Florida of a deductible, payment of claim and request for reimbursement.   In Connecticut the defendant paid a $10 copay.  [T. 10/03/07 a.m. pp.41, 51, T. 10/3/07 p.m. p.6.] Based on the foregoing the court finds Mr. Simes in willful contempt of Paragraphs 6.1, 6.2 and 6.3 of the Separation Agreement.

The Court orders:

1. The plaintiff is to reimburse the defendant the sum of $4,887.05 for unreimbursed medical expenses by January 20, 2010.

2. The plaintiff is to provide the insurance carrier and broker with instructions and permission to deal with the defendant on all issues relating to the children's claims and payments by January 20, 2010.

3. The plaintiff is directed to authorize the insurance carrier to accept claims directly from the defendant and to send reimbursement checks directly to the defendant by January 20, 2010.

4. The plaintiff is ordered to pay to the wife 50% of all unreimbursed medical expenses (not calculated per UCR).

5. The wife's obligation to consult with the husband pursuant to paragraph 6.3 relating to elective care is deleted.

6. The plaintiff is ordered to pay counsel fees to the defendant.   A hearing on said fees will be scheduled upon filing of the appropriate motion.

So Ordered.

The Court

SCHOFIELD, J.

Schofield, Marylouise, J.