Christine C. Collins f/k/a Christine C. DeFazio v. Richard J. Defazio (2010)

MEMORANDUM OF DECISION de PLAINTIFF'S MOTION FOR MODIFICATION OF ALIMONY and CHILD SUPPORT, MEDICAL INSURANCE and ANCILLARY ORDERS, POST-JUDGMENT (240.00) and PLAINTIFF'S MOTION FOR CONTEMPT, POST-JUDGMENT, FOR NON-PAYMENT OF ALIMONY and SUPPORT (241.00)

The parties' marriage was dissolved by judgment rendered on September 21, 2004 at which time the court incorporated their written separation agreement into the judgment.   Article IV. Alimony & Child Support provides for payment of unallocated alimony and child support to the plaintiff of 50% of his then base salary of $150,000 per year in monthly installments of $6,250.   The payments were made until approximately February 2008.   He advised the plaintiff that he was unemployed as of November 2007.   His loss of employment created the situation where the defendant was unable to pay.

The defendant also advised the plaintiff that the medical insurance for the children was being terminated by his former employer, Bank of America.   Her employer, Conair Corporation, requiring a letter on the B of A letterhead appears to be beyond the defendant's control.   Article V Medical Benefits and Expenses provides for the plaintiff to pick up coverage if not available to the husband.   The plaintiff admitted that their children were always covered.   The defendant has always paid his portion of any uninsured bill balances for the children's medical care.

The evidence did not show that the defendant has been avoiding available employment or that he has been utilizing his skills and expertise in a much lesser job.   There is a need to prove that opportunities for positions at his level do exist.   That element must be established to apply earning capacity in lieu of actual earnings.

The court finds that the plaintiff urges the court to rewrite their separation agreement for items that the agreement already covers.   The motion to modify is denied.

The court finds that the defendant is not willfully refusing to obey the terms of the judgment.   The motion for contempt is denied.

THE COURT

HARRIGAN, J.T.R.

Harrigan, Dennis F., J.T.R.