Angela Stone v. Jeffrey E. Stone (2010)

MEMORANDUM OF DECISION RE PLAINTIFF'S POST-JUDGMENT MOTION FOR CONTEMPT # 132

On October 15, 2009, the plaintiff Angela Stone filed a motion for contempt (# 132) against the defendant Jeffrey E. Stone contending that the plaintiff has failed to comply with the court's previous orders relative to his payment of child support, alimony, unreimbursed dental and health insurance payments, the home equity line of credit obligation, and any arrearages existing thereon.   A hearing on the motion was held before the court on May 7, 10 and 12, 2010.

On May 17, 2005 the marriage of the parties was dissolved and orders entered in accordance with a separation agreement incorporated into the judgment.   The orders called for the defendant to pay the outstanding home equity line of credit, child support, alimony, and unreimbursed medical and dental expenses for the two minor children.

On July 16, 2008, following the filing of a motion for contempt by the plaintiff (# 112) and a motion for modification by the defendant (# 113), the court (Marano, J.) entered orders relative to all of the above referenced issues and the matter was continued for compliance and further orders.   On October 2, 2008, the court (Ginocchio, J.) approved a stipulation entered into by the parties which established arrearages and payment obligations on the issues while retaining jurisdiction over the balance of the orders set forth in the July 16, 2008 ruling.

“In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271, 661 A.2d 621 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court.   One cannot be placed in contempt for failure to read the court's mind.”   Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).   “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.”  Wilson v. Wilson, supra, 38 Conn.App. 275-76;  Niles v. Niles, 9 Conn.App. 240, 253-54, 518 A.2d 932 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).   However, “even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988) (court still required to hold evidentiary hearing to support such orders);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

In this matter, there are several distinct claims of contempt on the part of the defendant.   Both the plaintiff and the defendant testified on the issues before the court and the clarity of the original or modified orders was never questioned by either party.

The defendant acknowledged his payment obligations but cited the economic downturn as having severely hampered his ability to gain accounts as a solo construction contractor.   He filed bankruptcy on July 1, 2009, received a discharge of his unsecured debts in January 2010, but reaffirmed several debts including the secured loan on his truck.   Plaintiff's Exhibits 12 and 14.   The defendant also continued to pay the tuitions due the private schools attended by their two minor children.   As previously found by the court in paragraph 8 of its July 16, 2008 ruling, the payments to the schools are voluntary and not required by the terms of the dissolution decree.   Those payments total approximately $25,000 per year after the receipt of financial aid.   Although the debts due the schools were discharged in bankruptcy, he has continued to make payments to the schools when possible to allow the children to continue their enrollment there.   Also, there remained tax obligations to the IRS and the State of Connecticut for several tax years which total over $52,000 for which he has periodically made payments.   Further, in November 2009, he was in a car accident that prevented him from working as he normally would have in the latter part of 2009.

At the time of the hearing, the defendant's May 7, 2010 financial affidavit reflected a net weekly income of $247.50.   Since the date of the dissolution the defendant has remarried.   The plaintiff's financial affidavit reflected net weekly income of $102 from her employment income plus alimony and child support of another $690.78 for a total of $792.78.   Despite the affidavit, it was undisputed at the hearing that the defendant had not made any alimony or support payments within the thirteen weeks prior to the hearing.

As to the defendant's child support obligation, the court finds that there is child support due from July 1, 2009 through the date of the hearing in the amount of $13,806.92.   Plaintiff's Exhibits 4 and 8.

As to the obligation to make payments toward the previously found child support arrearage, the order by the court in this regard is for $105 per week which was entered on July 16, 2008 and then reiterated through the agreement of the parties on October 2, 2008.¹  The plaintiff claims that the defendant has not made payments toward the arrearage since February 19, 2010 with the last payment prior to that having been made some four months earlier on October 21, 2009.   The court finds that, as of the date of this hearing, the defendant has made payments as outlined in Plaintiff's Exhibit 8 but there remains due $5,335 toward those scheduled payments.   Plaintiff's Exhibits 8 and 11.

As to alimony, the original decree was for $1,500 per month payable through November 1, 2010.   The court finds that, as of the date of the hearing, the defendant owes $15,000 for alimony payments due from August 1, 2009 to May 1, 2010.   Plaintiff's Exhibits 8 and 11.

As to the equity credit line obligation, though reflected on the bankruptcy petition, the defendant is to indemnify and hold the plaintiff harmless thereon and was to have paid the loan in full within three years of the date of the dissolution (i.e., no later than May 17, 2008).   The court finds that there is $3,276.14 due and owing to the plaintiff relative to this debt.   Plaintiff's Exhibits 6, 10 and 11.

As to the unreimbursed medical and hospitalization expenses, the plaintiff claims the amount of $1,493.73 for the two minor children.   Plaintiff's Exhibits 7 and 11.   The court finds the plaintiff has given the defendant credit for reimbursements that have been made.  Id. The court finds $1,493.73 due the plaintiff for these expenses.

During the hearing, the defendant acknowledged that some of his business expenses shown on Defendant's Exhibit G were actually applied to personal expenses (e.g., phone, fuel, vehicle, cable, internet, etc.).   Tax returns, bankruptcy documents, financial affidavits, bank statements and profit and loss statements of the defendant were reviewed which showed various levels of income.   E.g., Plaintiff's Exhibits 12 through 17;  Defendant's Exhibits E, F and G. The difference in levels of income on the documents was not necessarily inconsistent as they were calculated over different periods of time during which he had varying levels of income.

Although the defendant has been adversely affected by the economic downturn from late 2008 through the present, the court finds that but for plaintiff's receipt of an isolated payment in 2010, substantial payments have been not been made by the defendant since August 2009 toward the obligations set out in the October 2008 stipulation.   The court, while recognizing the economic climate in the building industry as well as the defendant's bankruptcy and his November 2009 injury, nonetheless finds that the failure to make the payments called for are willful and therefore finds the defendant in contempt.   In support of this conclusion the court notes that the defendant has failed to make even token payments over lengthy periods of time toward any of his obligations.   This is so even though financial relief in the form of a bankruptcy stay and discharge of various debts was granted for the period July 2009 through January 2010.   Further, the defendant has elected to take on debt for the private schooling of the children though not obligated to do so by any decree.   While this may have been through the implicit consent of the plaintiff, and with the thought of benefiting the children, it is a luxury that cannot be supported as evidenced by the parties' own testimony of their respective financial condition.   Such payments knowingly deprive the plaintiff, as well as the children, of the direct support they are legally entitled to receive.

The court finds the plaintiff's testimony and documentary evidence credible.   It does not find the defendant's testimony credible that he was unable financially to make any payments for lengthy periods of time.   While circumstances may have limited his ability to make such payments, he was not completely without resources to do so.   His election to commit his resources to the high cost of private schooling for the children, for which he was under no order to do so, does not excuse the failure to comply with the court's previous orders.   From its review of the orders, the court finds them to be valid and unambiguous particularly given that they were entered into by agreement on October 2, 2008 after negotiation by the parties.   As a result, either party would be hard-pressed to claim that the orders were unclear to them.

Accordingly, the court finds the defendant in contempt of the court's orders of October 2, 2008.   The defendant is ordered to recommence his payments as follows within thirty days of the date of this order:  alimony in the amount of $1,500 per month and child support in the amount of $318.62 per week.   An additional payment of $100 per week shall be made to the plaintiff toward the unreimbursed medical and dental expenses, child support arrearage, alimony arrearage, and the reimbursement for the home equity line of credit payments.   The $100 may be allocated toward any of the debts in whatever manner the plaintiff deems appropriate.   However, plaintiff shall provide written notice monthly (by paper or electronically) to the defendant how such payments are applied.

Counsel fees of $1,500 are awarded to the plaintiff pursuant to General Statutes §§ 52-256b and 52-400c payable on or before September 27, 2010.   The matter is continued to that date to monitor compliance with this order.   A further hearing is ordered for November 1, 2010 at which time the parties shall present to the court financial affidavits, child support guideline worksheets and a joint exhibit detailing, consistent with this order, the payments made by the defendant since May 7, 2010 and the balances claimed due by the plaintiff.   At that hearing, the court will enter revised orders as to the payment obligations of the defendant in light of the expiration on November 1, 2010 of his obligation to make alimony payments under the terms of the original dissolution decree.

So ordered.

BY THE COURT

Shaban, J.

FOOTNOTES

FN1. The original dissolution decree had ordered payments of $2,000 per month, and then was later modified to $1,380.69 per month or $318.62 per week commencing August 1, 2008..  FN1. The original dissolution decree had ordered payments of $2,000 per month, and then was later modified to $1,380.69 per month or $318.62 per week commencing August 1, 2008.

Shaban, Dan, J.