Melissa S. DeFrancesco v. John A. DeFrancesco (2010)

MEMORANDUM OF DECISION

This matter came before the court on July 14, 2009, and July 16, 2009, when the plaintiff appeared as a self-represented individual and the defendant appeared with counsel in connection with the defendant's Motion for Contempt, Post-Judgment (# 140) filed March 30, 2009, defendant's Motion for Modification of Child Support-Post-Judgment (# 141) filed March 30, 2009 and defendant's Motion for Counsel Fees-Post-Judgment filed March 30, 2009 (# 142).   On July 7, 2009, the plaintiff filed a Motion for Contempt (# 146 and 146.01) and a Motion for Modification (# 147).   Both parties testified as to all motions and introduced documentary evidence.   At the conclusion of the evidence the parties were to file briefs by August 4, 2009, and schedule a status conference on the record for August 14, 2009.

The following information is contained in the file and relevant to the disposition of the forgoing motions.   The parties were married on September 25, 1998, and have 2 children issue of the marriage, to wit:  Jacob Bard DeFrancesco, born May 3, 2001, and Alexa Rose DeFrancesco, born January 31, 2003.   On January 3, 2006, the parties proceeded on an uncontested basis to have their marriage dissolved (Solomon, J.).   The terms contained in the parties' Stipulation for Judgment were incorporated into the judgment.

In his motion for contempt the defendant alleges that the plaintiff has failed to comply with that portion of the judgment which states, “Plaintiff shall effectuate a complete refinance of the current mortgage on the house without Defendant as an obligor thereon.”   The house referred to in the judgment is the former marital residence.   In his motion for modification of child support, the defendant seeks a downward modification of child support claiming a substantial change in circumstances.   In his motion for counsel fees, the defendant seeks counsel fees in connection with the foreclosure of the former marital residence.

In her motion for contempt the plaintiff claims the defendant was in arrears on child support in the amount of $3,902 as of June 30, 2009.   She also seeks a modification of child support based on her inability to work full-time, and the defendant's arrearage on the payment of daycare.

The plaintiff was called by defense counsel and was examined extensively on her efforts to comply with the terms of the judgment.   The court found her to be a credible witness, but somewhat confused.   Pursuant to the judgment, the defendant transferred title to the marital residence to the plaintiff, but remained the sole obligor on the underlying mortgage.   As of the date of the hearing on the instant motions, the plaintiff had neither refinanced nor sold the property, and the defendant remains the sole obligor on the mortgage.   She claims that she could not communicate with the bank holding the mortgage since she was not an obligor.   Following the dissolution judgment, the plaintiff and the minor children moved from the marital residence in August of 2006.   She thereupon listed the property for sale and over a period of two years, she reduced the asking price in stages from $349,900 to $294,900.   Up until July 2008, the plaintiff was current on the mortgage and rented the property to help defray expenses.   She went to a number of banks to refinance but was unsuccessful.   She even sought help from her present husband.   She continues to keep the house clean.   She further claims the defendant told her “don't worry about it.”   The property is in foreclosure.   She claims she was not aware of the foreclosure until recently and has now filed an appearance in that proceeding.   There are substantial taxes due and owing, and her former attorney has liened the property and the lien and the bankruptcy filed by the defendant have been added to the foreclosure proceedings.   The plaintiff would accept any reasonable offer for the property as long as the liens were paid.   The court finds the plaintiff has used all reasonable efforts to comply with the judgment and is not in contempt.

The plaintiff further testified extensively about unpaid child support and daycare.   An arrearage in child support accumulated due to the wage withholding using 4 weeks instead of 4.3 weeks.   She seeks a determination of the arrearage and an increase in child support.   She has an additional child with her present husband but she has “bartered” with her sister-in-law for daycare.   Defendant's counsel offered to help the parties reconcile the arrearage and the court so ordered.

The defendant testified as to all motions.   He disputes that the plaintiff did not have the authority to speak to the bank holding the mortgage.   He introduced a letter (Exhibit G) that he sent to Bank of America giving the plaintiff authorization, and he sent her and his counsel a copy.   The court finds his testimony credible.   He claims he is willing to help plaintiff “show” the house and do any necessary work to make it more attractive to a potential buyer.   He is confronted with a low credit score causing him to pay a higher rate to finance a mortgage at conventional rates.   He is faced with legal fees for these proceeding and fees in the foreclosure action.   He admits to being in arrears for child support and daycare.   He claims the use of four weeks per month versus four point three was an unintentional mistake.

As to the former marital residence, the court denies the defendant's motion for contempt and the relief sought.   Both parties are going to suffer an economic hardship based on the current financial environment, especially in the housing market.   They are ordered to work together to effectuate a sale and do whatever they can to terminate the foreclosure.   The court reserves jurisdiction.

On March 2, 2007, the parties stipulated to a reduction in child support to $309 and matters relating to child support and daycare.   On July 14, 2009, the defendant submitted to the court a child support guideline worksheet claiming his obligation amounted to $245 per week.   However, he used $1,295 as the plaintiff's weekly gross income.   The financial affidavit filed by the plaintiff showed income of $90 per week.   There is nothing in the file or in the testimony and exhibits to support the plaintiff's income other than her financial affidavit.   The court directs defendant's counsel to submit a revised child support guidelines worksheet using minimum wage for the plaintiff, i.e. $330 per week.   The court will make a new child support order retroactive to the filing of the motion.   Any amounts due and owing to the defendant shall be applied against his arrearage of child support, etc.   The plaintiff's motion for modification is denied on the basis of a failure to prove a substantial showing of a change in circumstances.   The parties have failed to agree on the arrearage due to the plaintiff for child support and daycare.   The parties are directed to use the lowest number due the plaintiff to be offset by the amount due the defendant as set forth above.   The difference between the respective claims shall be subject to a status conference on the record.

SO ORDERED.

BY THE COURT,

CARUSO, JTR

Caruso, John R., J.T.R.