II v. Wendy Fahs (2010)

MEMORANDUM OF DECISION

Motions-# 200, 201 & 203

The parties filed post-judgment motions related to the court's August 12, 2009 orders.   The motions are identified as motion # 200, the defendant's motion to modify child support, # 201, the plaintiff's objection to the defendant's motion to modify and request for sanctions and # 103, the defendant's motion for contempt.   On February 16, 2010, a hearing on the motions was held and evidence presented.   On March 11, 2010, the evidence closed when the plaintiff submitted his memorandum of law.   The defendant did not file a memorandum.

Findings of Facts

This case has a long and tortuous history.   However, the issues raised by the motions relate to the parties relevant agreement that they signed on February 18, 2009.   On that date, the parties were canvassed by the court and counsel of record prior to the court's entering orders in accordance with the agreement.

The order took into consideration the plaintiff's admitted earning capacity of $25,000 per year and actual interest and dividend earnings of $10,000 per year.   The plaintiff's income resulted gross weekly wages of $673.07, or an admitted net weekly wages of $538 per week.   The defendant's actual gross earnings for 2008 of $131,725 were used to determine the arrearage owed by the defendant to the plaintiff.   Pursuant to the agreement, the defendant agreed to pay the plaintiff from May 1, 2008 to February 18, 2009 the sum of $265 per week, for a total of $8,960.   The defendant was ordered to pay the arrearage at $100 per week, starting on April 17, 2009 until fully paid.   If the defendant sold her home, the defendant was required to pay in full any balance remaining on the arrearage.

The defendant was ordered to pay current weekly child support of $56 from February 18, 2009 to July 1, 2009.   The weekly payment was based on the plaintiff's admitted income and the defendant's claimed weekly income of $1,115.38.   Further, the parties agreed that as of July 1, 2009, the defendant's child support obligation would automatically adjust to reflect the defendant's actual income “from all sources” and as calculated by using the Child Support Guidelines.   The order allowed the parties to have the child support reviewed on or after December 31, 2009.   The order specifically provided that the defendant's child support obligation was to be paid by an automatic wage withholding order.

On August 12, 2009, a hearing was held by the court.   The defendant did not appear at the hearing.   The plaintiff's attorney submitted evidence regarding the defendant's actual income and provided child support guidelines showing that the defendant's weekly income was $2,524.35 and that the plaintiff's was $108.58.   This court ordered the defendant to pay the plaintiff by wage execution the sum of $307.20 per week in current support and $100 per week on the arrearage of $8,990.11, as then found by the court.

On September 11, 2009, and again on September 29, 2009 (# 200), the defendant filed motions to modify the support orders.   Only the September 29, 2009 motion (# 200) is before the court.   In her motion, the defendant protested the August 12, 2009 orders.   The defendant claims that she did not receive notice of the August 12, 2009 hearing, and she claimed the plaintiff committed a fraud by not disclosing income or assets.   The defendant's motion does not allege a substantial change in circumstances.

The defendant's motion, in essence, seeks to set aside the court's August 12, 2009 orders.   However, the defendant did not file a motion to open judgment.   The February 18, 2009 judgment prevented her from seeking a modification of support until December 31, 2009.

The defendant did not present any evidence to support her claim that the February 18, 2009 agreement was erroneous.   She was fully canvassed by the court and counsel at the time the court considered the agreement of the parties.   She also did not present any evidence, apart from her testimony, that she did not have notice of the hearing.   Her claim of non-disclosed income or assets rested entirely on the claim regarding the existence of the Fahs Stagemyer business, and did not include any financial evidence regarding the business' income, earnings, or expenses.

On October 13, 2009, the plaintiff filed an objection and motion for sanctions (# 201) relating to the defendant's motions, alleging that her motions have reached the level of litigation misconduct because of the defendant's repeated court filings attempting to avoid the consequences of her failure to appear on August 12, 2009.   The plaintiff alleges that the defendant's motions have unfairly burdened the plaintiff with the costs of attorneys fees.   The plaintiff filed an affidavit in support of his litigation expenses identifying his legal fees since August 12, 2009.

On October 30, 2009, the defendant filed a motion for contempt (# 203) relating to an order in the parties' judgment regarding employment disclosure in reference to the Fahs Stagemyer business.   At the hearing, the defendant did not produce any financial evidence regarding the business' income, earnings, or expenses.

Discussion

Defendant's motion to modify support # 200

The defendant failed to appear in court for the hearing held on August 12, 2009.   The court reviewed the support order in accordance with the parties' agreement.   New orders were entered taking into account the parties' respective earnings.   At the time the court entered its orders, it had before it current financial affidavits from both parties, a current paystub of the defendant's earnings and three years of tax returns.   The defendant's paystub established that the defendant had not suffered any diminution in her earnings despite her claims at the time of the February agreement.   No appeal was taken of the August 12, 2009 orders.

The defendant, in her September 29, 2009 motion to modify, cites three reasons for the modification.   She alleges that the orders entered on February 18, 2009 are “flawed”, that she did not have notice of the August 12 hearing and that the plaintiff committed a fraud by a non-disclosure of income or assets.

The defendant, in her motion, seeks to modify child support but does not allege any substantial change in circumstances.   The pleading requirement is mandated by General Statutes § 46b-86.  Denardo v. Bergamo, 272 Conn. 500 (2005), Berglass v. Berglass, 71 Conn.App. 771 (2002).   Despite the omission at the hearing, the defendant did submit any convincing evidence that there was a substantial change in circumstances.

The defendant failed to present any evidence or argument at the hearing in support of her claim that the February 18, 2009 orders were improper or inadequate.   Accordingly, the court deems this claim abandoned by the defendant.  Knapp v. Knapp, 270 Conn. 815, 823 (2004).

Our general jurisprudence reflects the settled principal that no court will adjudicate a matter until all persons directly involved have been given actual or constructive notice of the proceeding.  Hasbrouck v. Hasbrouck, 195 Conn. 558 (1985).  “It is a fundamental premise of due process that a court cannot adjudicate a matter until the persons directly concerned have been notified of its pendency and have been given a reasonable opportunity to be heard in sufficient time to prepare their positions on the issues involved.”  Roberts v. Roberts, 32 Conn.App. 465, 475 (1993).   However, it is also equally true that appearing counsel and parties have an obligation to appear for scheduled events or suffer the consequences for failure to appear.  “The defendant can hardly charge the court with error where its course of action resulted from the neglect of his own counsel ․” Barton v. Barton, 123 Conn. 487 (1937), Aley v. Aley, 97 Conn.App. 850 (2006).

Applying these principles to the facts of this matter, there is no validity to the defendant's claims.   First, a valid notice was sent out advising all counsel and self-represented parties of the August 12, 2009 hearing well in advance of the hearing.   Second, the hearing was contemplated in the February 18, 2009 agreement.   Third, the defendant was still represented by counsel, attorney Peter G. Perakos, II, at the time of the August hearing.

The defendant, in her testimony, ignores all three facts.   Her professed ignorance of the notice and any issues she may have had or been having with her then attorney do not excuse her or her attorney from appearing at a hearing she knew was going to happen because it was anticipated in the February agreement.   At a minimum, the defendant can be charged with the obligation to inquire if she had any question regarding scheduling.

The plaintiff had the right to proceed with the scheduled hearing.   Any issues she claimed to have had securing alternate counsel could have been easily remedied by a motion for continuance which she used as recently as December 31, 2008.   After 7 years of litigation (this case began in 2001) and the appearances of several different attorneys on her behalf, the defendant has some familiarity with the legal process.   Accordingly, the court is not convinced that the defendant lacked notice of the August 12, 2009 hearing.

The defendant alleges that the plaintiff committed a fraud by a non-disclosure of income or assets.   The defendant represents that the plaintiff fraudulently failed to disclose income or assets from a business known as Fahs Stagemyer.   However, she presented no concrete evidence that the plaintiff had income from the business.

The plaintiff has testified that the Fahs Stagemyer company is merely a shell created solely to permit him to apply for grants to test his theories on water purification.   Further, he testified that Fahs Stagemyer to date has produced no money and that the company has been a drain on his savings that he hopes one day will produce a viable product for commercial use.

The defendant, in support of her claims, offered a series of web pages listing grant submissions to the National Institutes of Health and a resume of Amy Musumano.   None of the proffered exhibits provides any information sufficient to establish company value, viability, income, expenses or whether the plaintiff ever received any grants, funds or other monies whatsoever.   Thus, the defendant's evidence fails to support her claim.

The evidence reveals that the defendant's income suffered no diminishment at all during 2009.   In fact, her payroll records and W-2 reveal quite clearly that her income in 2009 was exactly consistent with prior years.   Therefore, the defendant's motion to modify is denied.

Plaintiff's October 12, 2009 Objection to Motion for Modification & Motion for Sanctions, # 201

The plaintiff's motion asks the court to deny the defendant's motions and award him attorneys fees for the significant legal expenses incurred by him.   The plaintiff alleges that the defendant's ongoing efforts to re-litigate this matter after failing to appear on August 12, 2009 warrant an award of attorneys fees.   The court agrees.

General Statutes § 46b-62 governs the award of attorneys fees in dissolution actions and provides that the court may order either spouse to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in General Statute § 46b-82.   The subject of significant litigation, our Supreme Court expanded its prior holding in Maguire v. Maguire, 222 Conn. 32, 608 A.2d 79 (1992), to recognize that when a party has engaged in litigation misconduct that requires the other party to expend significant amounts of money for attorneys fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorneys fees to compensate for the harm caused.   Ramin v. Ramin, 281, Conn 324 (2005).   The Ramin court recognized the unfairness caused to an innocent party who plays by the rules, yet has to expend resources to defend otherwise unnecessary litigation.   The court reasoned that its holding would not only limit litigation gamesmanship, but would also properly place the litigation cost burden on the party responsible for the litigation.

The matter has returned to court because of the defendant's unhappiness with the court's August 12, 2009 decision.   Her motions to modify, while somewhat creative, are procedurally and statutorily defective.   Her evidence in support of her claims is almost nonexistent and wholly fails to support the claims.   As importantly, the evidence in the form of the defendant's W-2 and paystubs reveals quite clearly that no time in 2009 did the defendant's income ever diminish per her representations in the February 18, 2009 agreement.   Applying the Guidelines to the defendant's income going forward, the only available outcome is that there could be no modification at all.

The court had before it on August 12, 2009 a current paystub of the defendant and 3 years of historical tax returns-an income stream that did not change from August 12, 2009 to the date of this hearing.   Because there actually was no substantial change, even if the court reopened the December 12, 2009 orders, the same result would have to enter because the defendant had the same income then as now.   Accordingly, all of the defendant's motions and protestations produce nothing but a waste because the correct result was entered on August 12, 2009.

It is appropriate for the court to place the litigation cost burden on the defendant as the party responsible.   The plaintiff is awarded the sum of $750 in attorneys fees.

Defendant's October 30, 2009 Motion for contempt, # 203

The defendant seeks a finding of contempt relating to a provision in the dissolution judgment regarding employment disclosure in reference to the Fahs Stagemyer business.

A finding of contempt is a factual finding.  Legnos v. Legnos, 70 Conn.App. 349, 352-53, cert. denied, 261 Conn. 911 (2002).   A good faith dispute or legitimate misunderstanding of the terms may prevent a finding of willfulness.   It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order.  Marcil v. Marcil, 4 Conn.App. 403, 405 (1985), Eldridge v. Eldridge, 244 Conn. 523, 529 (1998), Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).

The testimony does not establish that the plaintiff has gainful employment.   The plaintiff has attempted, after taking various measures to make Fahs Stagemyer a viable business, there is no evidence that the business has produced income to the plaintiff.   The defendant did not present any financial information at trial to support her claim.   There is not sufficient credible evidence to sanction the defendant other than awarding the plaintiff attorneys fees which has been ordered in this opinion.   The defendant's motion for contempt is denied.

It is so ordered,

THE COURT

Angelo L. dos Santos, J.

dos Santos, Angelo L., J.