Francis Barkyoumb v. Ann Marie Barkyoumb (2010)

MEMORANDUM OF DECISION

In this post-judgment proceeding, the plaintiff has filed motions seeking modification of child support and alimony and the defendant has filed a motion for contempt.

The original judgment in this case was entered on January 2, 2004, and the plaintiff was ordered to pay the defendant $750 a week in child support and $500 a week in alimony for ten years.   On July 14, 2004, the parties entered into a post-judgment stipulation regarding the plaintiff's property settlement obligation.   On October 6, 2005, the parties entered into another post-judgment stipulation which, inter alia, reduced the plaintiff's child support obligation to $500 a week.

The plaintiff filed his motion to modify on January 21, 2009, alleging, inter alia, a change in his financial circumstances.   On February 25, and April 7, 2009, the defendant filed a motion for contempt alleging that the plaintiff had failed to pay alimony and child support.   On October 21, 2009, the plaintiff filed another motion to modify alleging that since the judgment, his business had closed and he was unemployed.   On January 4, 2010, the defendant filed another motion for contempt alleging that, in addition to the claims for alimony and child support, the plaintiff had failed to pay dental expenses, maintain life insurance as required, failed to pay the defendant $100,000 on July 1, 2009, and failed to pay the remaining outstanding balance on the property distribution as set forth in a post-judgment stipulation of July 14, 2004.

A hearing on the matters was held on March 2, 2010, at which both parties were represented by counsel and both testified.   Thereafter, both parties submitted post-hearing briefs.   After careful review of the evidence adduced at the hearing and applicable statutes and case law, the court makes the following findings of fact and conclusions of law.

The plaintiff was current with all his financial obligations until 2008.   He had done this by borrowing some of the money from the business but this gradually came to an end as the business began to suffer deeper and deeper losses.   The slide continued until it eventually ended in the closing of the company in February 2009.   The plaintiff made partial payments in the amount of $21,950 to the defendant during this time, which the court allocates to child support.   Therefore, the court finds that presently, as to child support, the plaintiff is in arrears in the amount of $7,050 and as to alimony, he is in arrears in the amount of $29,000.

The plaintiff has tried to start a consulting business but it has produced no revenues to date.   He currently collects $542 a week in unemployment compensation.   In 2009, the life insurance policy that the plaintiff was required to maintain for the benefit of the defendant in the amount of $1,500,000 lapsed and no longer exists.

The plaintiff filed for bankruptcy in early 2010.¹  The plaintiff still has $108,000 in a 401k account.   The plaintiff has listed four life insurance policies on his bankruptcy petition with a notation on each that it has no cash value.

The court finds that there has been a substantial change in circumstances due to the loss of the plaintiff's business resulting in a drastic reduction in income to the plaintiff.   The court finds, therefore, that his nonpayment of child support and alimony was not willful.

The court finds that the plaintiff has current earning capacity of $542 a week and the defendant currently earns $596.   The court does not make any orders regarding the child tax exemptions.   The defendant shall provide health insurance for the minor child as available through her employment at reasonable cost.   The court has attributed this cost to be about $30.00 a week.   Therefore, under the child support guidelines the plaintiff shall pay to the defendant $111 a week in child support along with 15% of the arrearage until such time as it is paid in full.   The plaintiff will pay 38% of any unreimbursed expenses in this regard.   The court will retain jurisdiction of this issue in the event that such medical coverage is not available or is, in fact, of substantially more cost than attributed by the court.   These orders are not retroactive, but are effective as of the date of the hearing on March 2, 2010.

The court finds that the alimony order should also be modified and the plaintiff is ordered to pay the defendant the amount of $50.00 a week.   This order is not retroactive.   The plaintiff is ordered to inform the defendant immediately if there is any change in his employment or income status.   The plaintiff is further ordered to pay to the defendant the alimony arrearage in the amount of $29,000 within thirty (30) days of this decision.   The court specifically finds that the plaintiff has the ability to pay this arrearage by virtue of the funds in the 401K account.

The court finds that the failure to maintain life insurance as ordered by the court is willful in light of the fact that the plaintiff has other life insurance policies as listed on his bankruptcy petition.   He is ordered to change the beneficiaries on those policies to reflect that the defendant is the beneficiary up to the amount of $1,000,000, immediately and he is to provide proof to the defendant of that action within one week.   The court will retain jurisdiction of this issue in the event that said policies do not total $1,000,000.

The court does not award any attorneys fees.

SO ORDERED.

BY THE COURT,

J. Fischer, J.

FOOTNOTES

FN1. Accordingly, because of the stay in effect, the court does not address any property issues.  FN1. Accordingly, because of the stay in effect, the court does not address any property issues

Fischer, Jack W., J.