Janet Hall v. Todd Harrison (2010)

MEMORANDUM OF DECISION MOTIONS 151, 159 & 160

I

BACKGROUND

The plaintiff filed a motion for contempt, number 151, on August 6, 2009, alleging that the defendant has willfully failed to pay child support in the amount of $175.   In response, the defendant has filed two motions to modify.   Motion number 159 was filed on October 22, seeking a modification of custody.   Motion number 160 was filed several days later on October 26, essentially restating his motion for modification of custody and adding a motion for modification of child support.

By way of background, the plaintiff asserts in her motion for contempt that on August 22, 2007, the parties agreed that defendant's child support obligation would be reduced from $250 per week for their two minor children to $175 per week for Brandon, the remaining minor child at that time.   She also asserts that the defendant filed a motion to modify child support on November 28, 2007 which, following an evidentiary hearing, was denied by the court, Barall, J., on April 3, 2008.¹

The defendant filed another motion to modify child support on October 10, 2008, claiming the termination of his employment.   After an evidentiary hearing in which he claimed that his net earnings were $162.50 per week, the defendant's motion to modify was denied by the court, Epstein, J. The plaintiff, who was employed by W.B. Mason had net earnings of $699 per week.   Despite the Court's two separate rulings denying the defendant's motions to modify, he continued to pay his unilaterally reduced child support of $75 per week, in clear violation of his continuing child support obligation of $175 per week.

Subsequently, the plaintiff's employment with W.B. Mason was terminated and she filed this motion for contempt on August 6, 2009.   The defendant was served in hand by a state marshal on August 11, 2009, summoning him to appear in court on September 8, 2009.   The defendant failed to appear in court as ordered and, following the plaintiff's testimony, a capias was issued by the court, Taylor, J., with a bond of $5,000 which approximated defendant's child support arrearage at that time.   The capias was executed on October 22, 2009, and the defendant appeared in court.   At this appearance, an attorney was appointed on his behalf and the $5,000 bond was vacated.   Immediately upon his release, he filed the current motions to modify custody and support that are before the court.

II

FURTHER FACTS AND DISCUSSIONA. Defendant's Motions to Modify

The parties have joint custody of their 17-year-old son, Brandon, who resided principally with plaintiff until February 7, 2010.   At that time, during these ongoing proceedings, Brandon began to live primarily with the defendant.   At the conclusion of the evidence on the defendant's motions to modify custody, the court ruled it would be in the best interest of Brandon to remain with his father, along with his older brother Todd, despite Brandon's continuing difficulty with success at school.   Although the plaintiff has provided a more structured and informed parenting relationship with Brandon, he will turn 18 on December 29th of this year and is old enough to begin making choices of his own, along with their consequences, so long as those choices are being monitored and guided by one parent.   The defendant credibly claims he ensures that Brandon goes to school in the morning, but has been unable to control his departures from school supervision.   He also has taken the position that Brandon is to remain enrolled in school until he reaches the age of majority.

Brandon's circumstances echo the underlying difficulties the plaintiff claimed she experienced with the parties' older son, Todd, when he moved to his father's home several years ago.   Although the plaintiff may be the more responsible parent in the court's view, the defendant credibly testified that he feared an escalating threat of abuse by Brandon toward the plaintiff, so long as Brandon remained subject to her more structured parenting style.

The motion to modify custody was granted on the record in court on April 12, 2010.   In light of the court's ruling on custody, the motion to modify child support is granted in part, and is terminated retroactive to February 7, 2010;  the day Brandon permanently moved into the defendant's residence.   The court separately grants in part the defendant's motion to modify child support as to the amount of $175, discussed infra.

B. Plaintiff's Motion for Contempt

Based upon the evidence presented, the court finds that on October 12, 2008, the defendant reduced his child support unilaterally from $175 to $75 per week.   In her motion for contempt, the plaintiff seeks a finding that there is no substantial change in the defendant's financial circumstances.   Therefore, she seeks findings of a willful contempt and an arrearage of $7,100.   Furthermore, she seeks attorneys fees due to the defendant's willful and prolonged violation of the August 22, 2007 child support order.

Connecticut procedure authorizes motions for contempt.   See Connecticut Practice Book § 25-27.  “To constitute contempt a parties' conduct must be wilful ․ Noncompliance alone will not support a judgment of contempt.”   (Citation omitted;  internal quotation marks omitted.)  Detels v. Detels, 79 Conn.App. 467, 470, 830 A.2d 381 (2003).  “The burden of establishing a prima facie showing of contempt ․ falls upon the [moving party].”  (Footnote omitted;  external citation omitted.)   Lawson v. Lawson, Superior Court, judicial district of New Haven at New Haven, Docket No. FA00 0434443 (February 14, 2006, Dewey, J.).

The plaintiff has adequately proven a willful violation of the order of support in the amount of $175.   Despite the defendant's claims of unemployment and a change in his financial circumstances, his motions to modify have been denied on two previous occasions.   In light of these findings and evidence presented to the court in this matter, the defendant is found in willful contempt.

Although this contempt has been longstanding, the court also finds the defendant's willful violation of the court order of support to have concluded in October 2009.   At that time, the defendant was admitted to the hospital for five to six days, due to a serious and permanent heart condition, for which he is now being treated.   Initially, he was advised not to work, although the defendant's heart condition now appears to have stabilized through medication.   He has been advised to seek a surgical remedy in the form of a “pace-maker,” for which he cannot pay and for which he has no insurance.

The defendant's veracity has been seriously challenged during these proceedings.   For example, he has pending applications for unemployment benefits, in which he claims an ability and readiness to work, while, at the same time, he awaits a determination on his claim of disability from the Social Security Administration.   Although at various times over the past year, these claims may have been independently true, it seems unclear which of these two inconsistent claims he will pursue.

Furthermore, on his financial affidavit dated December 7, 2009, he claimed net weekly income of $50 and liabilities of $23,100.   Nine months earlier, on his financial affidavit dated March 11, 2009, the defendant claimed net weekly income of $162 and liabilities of $20,900.   Interestingly, during a period in which he now claims $1,195 in weekly expenses, his liability has only increased by $2,200 over nine months.   Moreover, in his financial affidavit dated April 3, 2008, a time during which the defendant was gainfully employed, he claimed liabilities totaling $21,268.   Therefore, despite his claims of diminished income, the defendant's liabilities have remained substantially unchanged during his claim of continuous and longstanding unemployment.

In explaining the inconsistency between his income and expenses, he claims to have received numerous loans from friends and family over the past year, totaling approximately $10,000.   However, he has offered no direct or other substantial evidence of the payment of money or loan agreements, other than his own testimony.   Therefore, the court cannot find that these transfers of income actually occurred, or find that, if they did, they were loans.

The defendant did admit to occasionally working during this period of unemployment.   He plows snow during the winter months with his truck, for which he admits receiving compensation of $2,810 this past year, and for which he claims no net income due to expenses associated with using his truck to plow snow.   Last summer, he mowed three different lawns during the spring and summer months with his riding mower, and he hopes to cut at least one of them this season.   He continues to work informally as a mechanic out of his garage with a small lift, but claims to do only minor work, such as oil changes for $10 for friends and family members.   He also receives rent of $50 per week from his son, Todd.

Based upon the evidence, the defendant's claims of diminished income continue to lack credibility.   Although he is perpetually in arrears of nearly 60 days on his mortgage, his home is not in foreclosure, despite monthly first mortgage payments of approximately $2,400.   Based upon an expansive view of all of the income he has claimed and admitted in his testimony, this income would not equal his regular mortgage payments, let alone his other weekly expenses.   Yet, his liabilities have remained relatively static for several years.

The defendant claims weekly expenses of $1,195, including child support of $175, of which he only pays $75.   Assuming his figure of $1,195 in weekly expenses to be inaccurate for this reason, the court will reduce the defendant's weekly expenses to $1,095 in order to account for the weekly shortfall of $100 in child support, for which he has been found in contempt.   Annualized, his expenses total $56,940.   The court finds that he has had net weekly income to meet these expenses, since the defendant's liabilities have remained essentially unchanged since April of 2008.   At that time, his net weekly income was determined to be $1,040 by Judge Barall.   Annualized, this figure totals $54,080 and is generally consistent with his income since 2001.   In light of the fact that the defendant has failed to prove that he has received any legitimate loans, the court finds there was no substantial change in his financial circumstances between the time the order of support was issued in April of 2008 and the defendant's illness in October of 2009.

The difficulty in this case of contempt is the willfulness of the defendant during the period of his legitimate illness.   Although the court concluded that the defendant was able to work before his illness, he has adequately shown that he was unable to work for some period of time after he was hospitalized in October of 2009.   See Defendant's Exhibit A, p. 2. And although he now appears capable of working, see Plaintiff's Exhibit 1, it is irrelevant to these proceedings on contempt at this time because the motion to modify custody has been granted and the order of support terminated, based upon the change in primary residence of Brandon, which occurred on February 7, 2010.

C. Retroactivity

The defendant seeks the retroactive application of the order modifying support in this case.   However, the defendant did not provide the court with the returns of service of his motions to modify, as required by General Statutes § 52-50 for retroactivity.  “General Statutes § 46b-86 specifically requires that in order to modify the periodic payment of permanent alimony and support retroactively to the date a motion seeking modification was served on the opposing party, such service must be made pursuant to § 52-50 by a sheriff, a deputy sheriff, a constable or other proper statutorily authorized officer.”  Shedrick v. Shedrick, 32 Conn.App. 147, 151, 627 A.2d 1387 (1993).   Although the court signed waivers for service of process of these motions to modify, there are no returns of service in the file.

Nonetheless, the parties began the hearing on these motions on December 7, 2009, and the court finds this to be a sufficient basis for retroactivity, as there can be no dispute as to notice.   Although the evidence has not established a substantial change in the defendant's income, notwithstanding his illness, the court's analysis was based upon the defendant's financial affidavit, last filed on December 7, 2009.   The defendant also provided proof that he was advised by his doctor on December 7, 2009 that, due to his severely reduced heart function, he “should not work.”   Defendant's Exhibit A, p. 2. Although Brandon's permanent change of residence did not occur until two months later on February 7, 2010, the order modifying the defendant's order of support shall be effective December 7, 2009.   At that time, the defendant was voluntarily paying $75 per week, which the court finds to be a sufficient payment of support.

In accordance with this determination, the defendant's arrearage is $6,000, based upon the court's previous finding of an arrearage on December 7, 2009.   In addition, the plaintiff claims $300 in unreimbursed dental costs for the benefit of the minor child.   Therefore, the arrearage found by the court is $6,300, to be paid by the defendant in the amount of $100 per week until it is completely paid in full, or otherwise paid in a lump sum, as agreed to by the parties in the event of an unemployment or social security settlement.   See Court Orders, dated April 12, 2010.

D. Plaintiff's Motion for Attorneys Fees

The plaintiff seeks attorneys fees of $5,000 for the defendant's contempt.   Our dissolution law clearly permits the trial court to award attorneys fees after a finding of contempt.   See Eldridge v. Eldridge, 244 Conn. 523, 534, 529, 710 A.2d 757 (1998).  General Statutes § 46b-87 provides in relevant part:  “When any person is found in contempt of an order of the Superior Court entered under section ․ 46b-81 to 46b-83, inclusive ․ the court may award to the petitioner a reasonable attorneys fee ․” “It is axiomatic, however, that the determination of reasonableness of attorneys fees appropriately takes into consideration a range of factors, among which the time and labor expended is but one consideration ․ Moreover, because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court properly may consider the defendant's behavior as an additional factor in determining both the necessity of awarding attorneys fees and the proper amount of any award.”  Esposito v. Esposito, 71 Conn.App. 744, 749-50, 804 A.2d 846 (2002).

In this case, the plaintiff testified that her legal bills for this case are $5,000.   The defendant challenged this evidence as incompetent to prove the fees owed, as no affidavit of attorneys fees had been offered or introduced into evidence.   The court accepts the plaintiff's testimony of her attorneys fees owed in this case.   The hearings on the motion for contempt in this case required multiple appearances in court over the course of several months.   Moreover, “a party need not present expert testimony regarding attorneys fees [because] courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described.”  Dowd v. Dowd, supra, 96 Conn.App. at 87 n.9, 899 A.2d 76 (2006), citing Smith v. Snyder, 267 Conn. 456, 473, 839 A.2d 589 (2004).   In addition, “[i]t is ․ well settled that pursuant to § 46b-87, the court has the authority to impose attorneys fees as a sanction for noncompliance with a court's dissolution judgment and that ‘that sanction may be imposed without balancing the parties' respective financial abilities.’  “ Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997).

In this case, there has been an extended period of noncompliance and contempt, for well over a year prior to the defendant's illness.   The filing of this motion for contempt by the plaintiff followed multiple denials of the defendant's motions to modify, and finally was precipitated by her own unemployment.   Although the defendant became seriously ill during the pendency of the motion for contempt, the filing of the motion, the defendant's failure to appear and the issuance of a capias in this case all occurred well before the defendant's illness in October.   However, the defendant's well founded motions to modify were filed after his hospitalization and incarceration, and the court finds they were a substantial aspect of this lengthy litigation.   Based upon the facts of this case, the court awards $2,500 in attorneys fees to the plaintiff.

The total amount owed to the plaintiff for child support and attorneys fees is $8,800.   Payment of the support arrearage and attorneys fees shall be made in the same manner as the arrearage for child support, at a total of $100 per week until the arrearage and debt is fully satisfied.   The defendant shall nonetheless pay the balance owed in a lump sum, to the degree it can be satisfied, in the event of an unemployment or social security settlement.

In making this order of $100 per week, the court now considers the defendant capable of working, as he has admitted this in his testimony and in his application for unemployment.   Further, the defendant has to provide for Brandon, who now lives with him and for whom there is no current order of support, representing an expense he did not have at the time of his contempt for failing to pay the $175 order of support.   In light of all these circumstances, the court considers the $100 weekly payment reasonable, as it is nominally higher than the amount he had been paying voluntarily.

SO ORDERED.

BY THE COURT,

Mark Taylor, J.

FOOTNOTES

FN1. According to court records, Judge Barall established the child support order of $175 for Brandon in his written decision of April 3, 2008, in which he found a net weekly income capacity for the defendant of $1,040, notwithstanding the defendant's financial affidavit showing net weekly income of $527..  FN1. According to court records, Judge Barall established the child support order of $175 for Brandon in his written decision of April 3, 2008, in which he found a net weekly income capacity for the defendant of $1,040, notwithstanding the defendant's financial affidavit showing net weekly income of $527.

Taylor, Mark H., J.