Peter A. Guasta v. Carol M. Guasta (2010)

MEMORANDUM OF DECISION

I

BACKGROUND AND FACTS

The parties' motions for modification and contempt were heard by the court at an evidentiary hearing held on June 8, 2010.   At the hearing, the plaintiff's motion to modify alimony, number 132, was denied by the court and the defendant's amended motion to modify child support, number 137, was withdrawn.   In addition, the defendant seeks a finding of an arrearage on unpaid support, which had formed the basis of her amended motion for contempt, number 136.   Although the court finds there is no factual basis for contempt on the part of the plaintiff, the court nonetheless finds there to be an unpaid balance of support in the amount $9,956.28, notwithstanding the plaintiff's claims of laches, equitable estoppel and the doctrine of merger.

In the marital separation agreement, incorporated into the judgment of dissolution by the court, Brennan, J., on January 19, 2007, the plaintiff was ordered to pay child support in the weekly amount of $352 and alimony in the weekly amount of $466.   On a monthly basis, the plaintiff's order of support equaled $3,544.66.   Instead of paying this amount, the plaintiff paid $3,200 per month, believing that the order was in error.

Although the parties were represented by counsel at the time of the dissolution of their marriage, the parties represented themselves on a subsequent motion to modify, number 128, resolved by an agreement and ordered by the court, Epstein, J., on June 24, 2009.   The agreement provided for a reduction in weekly amounts of child support to $309 and alimony to $244.84.   On a monthly basis, the plaintiff's modified order of support equaled $2,400.   The defendant now seeks a finding of an arrearage owed to her, based upon the plaintiff's failure to pay the full amount of court-ordered support between the time of the dissolution and the time that order was modified on June 24, 2009.   It is undisputed by the parties that the plaintiff's underpayment of support totals $9,956.28.

The remedy sought by the defendant is to place this arrearage into a federally qualified college savings account in her name, with a Peter J. Guasta, d.o.b July 6, 1995, named as the beneficiary.   The parties' second minor child, Kayla Guasta, d.o.b. April 8, 1997, suffers from disabilities which prevent the possibility of her taking advantage of a post-secondary education.

II

DISCUSSION

“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).   In this case, the court finds there to be no willful violation of a court order.   The court finds as a matter of fact that the plaintiff mistakenly believed he had an agreement to reduce his alimony payment to the defendant.   Under these circumstances, a willful violation of a court order cannot be found.   The court nonetheless finds non-compliance with the court-ordered support and an arrearage in the amount of $9,956.28.

The court finds that the plaintiff's claim of laches to be unfounded as a matter of fact.  “The defense of laches, if proven, bars a [party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the [opposing party].   First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party].”  (Internal quotation marks omitted.)  Treglia v. Zanesky, 67 Conn.App. 447, 459, 788 A.2d 1263 (2001), cert. denied, 259 Conn. 926, 793 A.2d 252 (2002).   The court finds that neither the delay was inexcusable nor was the plaintiff prejudiced in this case by his unilateral reduction in his payment of support.

The plaintiff further claims the defense of equitable estoppel.  “Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby [the party] is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ․ as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse ․” “[Our Supreme Court has] recognized that estoppel always requires proof of two essential elements:  the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief;  and the other party must change its position in reliance on those facts, thereby incurring some injury.”  (Internal quotation marks omitted.)  Union Carbide Corp. v. City of Danbury, 257 Conn. 865, 872-73, 778 A.2d 204 (2001).

Based upon the legal requirements of equitable estoppel, the facts do not support the plaintiff's claim.   In this case, the defendant made no assertion of fact relied upon by the plaintiff to his detriment.   Instead, he claimed an inability to pay the then-existing order of alimony, as well as a mistake in the judgment and, to his own advantage, unilaterally reduced his alimony and child support payments by over $300 on a monthly basis.

As to the plaintiff's claim of merger, the court similarly finds no applicable basis for this doctrine to apply under the facts of this case.   At its essence, the plaintiff claims that any arrearage owed at the time of the June 24, 2009 modification merged into the agreement.   However, that was a post-judgment motion to modify a final order in a dissolution action.   The order was not a pendente lite order of support, interlocutory in nature that, by operation of law, merges into the final judgment and is terminated if not claimed at the time of dissolution.   See Tobey v. Tobey, 165 Conn. 742, 744, 345 A.2d 21 (1974);  also see Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953);  also see Papa v. Papa, 55 Conn.App. 47, 54, 737 A.2d 953 (1999).

Although an order of support is modifiable subsequent to a final judgment of dissolution, it should not, thereby, be viewed as a continuing interlocutory order of the court subject to the doctrine of merger.   Moreover in the court's view, the failure to claim an arrearage during modification proceedings is of less import, as compared with contempt proceedings during which it would be more logical to assert an arrearage claim.   As such, there is no rational basis to extend the doctrine of merger to the post judgment modification of support in this case, which occurred on June 24, 2009.

Based upon these findings, the plaintiff shall pay $9,956.28 to the defendant within 21 days.¹  After any applicable taxes are paid on this amount, if any, by the defendant, the remaining sum shall be placed into a federally qualified college savings account in her name with their minor son, Peter J. Guasta, d.o.b. July 6, 1995, named as the beneficiary.

SO ORDERED.

BY THE COURT

Mark H. Taylor

FOOTNOTES

FN1. In making this order, the court notes that the plaintiff's financial affidavit, provided to the court on June 8, 2010, in compliance with the standing orders, shows in excess of $40,000 in his personal checking accounts..  FN1. In making this order, the court notes that the plaintiff's financial affidavit, provided to the court on June 8, 2010, in compliance with the standing orders, shows in excess of $40,000 in his personal checking accounts.

Taylor, Mark H., J.