Frank Matherne v. Erica Matherne (2010)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION TO VACATE (114) AND DEFENDANT'S MOTION FOR CONTEMPT (117)

The parties appeared, together with their counsel before the undersigned on June 29, 2010.   The court heard testimony from both parties and from the defendant's father.   Thereafter, the parties submitted briefs on July 12 and July 13, 2010.

Findings of Fact

The court finds the following facts as proven by a fair preponderance of the evidence:

1.  The husband initiated this action for divorce on March 27, 2006.

2. The wife filed an “acceptance and affidavit of the service” and a pro se appearance on the same date, file-stamped March 28, 2006.

3. The husband relocated to his parent's home, 220 Edgewood Lane, Montz, Louisiana and filed an appearance with that address on April 3, 2006.   He then filed an amended complaint dated April 18, 2006.

4. The wife retained counsel who filed an appearance, answer and cross complaint dated May 17, 2006.   The appearance correctly listed the husband's address but added “apartment 1” and the box was not signed or dated indicating that it had been in fact delivered to the husband.   The answer incorrectly listed the husband's address as “22 Edgewood Lane, Apt. 1” and was certified as having been delivered to the husband.

5. The parties filed a case management agreement, signed by the husband, the wife and the wife's attorney on July 31, 2006.

6. Thereafter, the husband, the wife and the wife's father had numerous telephone conversations.   There were several scheduled pendente lite court hearings which had to be postponed by the wife for the convenience of the husband who did not want to spend the time or money to travel to Connecticut from Louisiana.

7. The husband testified, not credibly, that he never spoke to or received mail from the wife's attorney (now a judge of the Superior Court) in the 14 months between counsel's appearance and the date of the order of legal separation.

8. On or around January, 2007, the husband moved from his parent's home to his own apartment in a nearby town in Louisiana but failed to file a new appearance with his new address as he had done when he first moved to Louisiana.

9. The court scheduled a special master's pretrial for November 7, 2006 (notice sent August 3, 2006), a judicial pretrial for June 22, 2007 (notice sent June 1, 2007) and a trial for July 13, 2007 (notice sent June 26, 2007).

10. The husband testified, not credibly, that he did not receive any of these notices from the court despite the fact that the court records indicate that the notices were sent to him at 220 Edgewood Lane, Apt. 1, Montz, LA 70068.   The husband explained that 220 Edgewood Lane is a single-family residence and not an apartment building.   Those notices were not returned to the court file and marked “undeliverable.”

11. The wife and the wife's father testified credibly that they both reminded the husband that the trial was scheduled for July 13, 2007 and that he reiterated that he did not want to spend the time or money to travel to Connecticut.   The wife's father testified credibly that after July 13, 2007 he made the husband aware that the court had proceeded in his absence.

12. The wife produced evidence of telephone calls placed from her father's home to the same telephone number in Laplace, Louisiana on June 16, 2007, June 28, 2007 and July 2, 2007.   There were also incoming telephone calls from the same Louisiana telephone number on June 28, 2007 and July 2, 2007 for a total of 22 minutes (exhibit B and exhibit C).

13. Within one month of his relocation to Louisiana, the husband was earning between $50,000 per year and the $96,000 per year which he presently earns.   The plaintiff presented no evidence to support a claim that he had an inability to pay the court orders.

14. In October 2007, the husband testified that he was curious as to the status of his divorce in Connecticut and checking the Judicial Branch website, he learned that the case had gone forward on July 13, 2007.   He requested and was promptly sent a copy of the court orders which granted a legal separation, that the husband continue to maintain health insurance for the wife, that the husband pay to the wife $250 per week alimony, that the husband pay to the wife $15,000 as a lump sum property settlement and that the husband assign to the wife 50% of his retirement accounts.

15. The husband's testimony, that he thought his Connecticut divorce case had been terminated or dismissed, is inconsistent with his checking on the status of that case in October 2007.

16. Rather than attempting to open or set aside the Connecticut court orders, the husband filed a divorce action in the state of Louisiana in November 2007 and proceeded to judgment under terms substantially more favorable to him and those of the Connecticut judgment.

17. The husband testified, not credibly, that he maintained the wife's medical insurance until either August or October 2009 and that he mailed to her $120 per week in cash until March 2008.   The court finds not credible that the husband mailed such large amounts of cash through the mail.   He produced no evidence to support either claim.

18. Throughout the time of the separation and through and including the present time, the wife has suffered from a debilitating series of illnesses brought on by leaking silicone breast implants of which the husband was aware.   She testified credibly that she has undergone ten surgeries, muscle deterioration, memory loss and that she is permanently disabled from employment.   She testified that her husband had terminated her health insurance coverage on or about July 2007 and that she has incurred medical expenses in excess of $92,750 all paid by her father.   She testified credibly that her husband had paid none of the court-ordered alimony, had failed to pay her the $15,000 property settlement and had failed to give to her 50% of his retirement accounts as court ordered.

19. The wife's father testified credibly that he paid her medical bills in the approximate amount of $92,750.

20. The husband took no action to open, set aside, vacate or appeal the Connecticut judgment of July 13, 2007 until April 20, 2010, nearly three years later when he filed the instant motion to vacate/set aside/nullify and/or re-open.

21. It is not unreasonable that after a ten-year marriage, where the wife was otherwise without health insurance, unemployable and disabled and the husband was earning between $50,000 and $95,000 per year, that the wife would be awarded $250 per week alimony, a $15,000 lump sum property settlement, half of the marital portion of the husband's pension and continued health insurance for three years.

22. The court orders at issue were clear and unambiguous and were clearly understood by the plaintiff.

Legal Discussion

The husband argues that the Connecticut judgment should be opened or otherwise set aside as he did not have notice of the July 13, 2007 trial notwithstanding the fact that he was the plaintiff in the case, that he had frequent communication with the wife and the wife's father, that he had moved to a second address in Louisiana without sending a corrected appearance form to the court with his new address as he had done when he first relocated to Louisiana and that his parents continued to reside at that first address in a small town in Louisiana.

The wife argues that the husband is precluded from opening the Connecticut judgment with a motion filed nearly three years thereafter.

Practice Book § 17-43 states:

Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same.   Such written motion shall be verified by the oath of the complainant or the complainant's attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear.

Connecticut General Statutes § 52-270 states:

The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.

Connecticut General Statutes § 52-212(a) states:

Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.

(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.

Connecticut General Statutes § 52-212a states:

Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.

The plaintiff does not claim that he was unaware of the case which he himself had commenced.   While it is well held that “a judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud ․” Hill v. Hill, 25 Conn.App. 452, 455 (1991), the plaintiff does not claim that he was the victim of fraud.   Rather, his argument seems to focus on his unconvincing claim that he was unaware that the Connecticut case was still pending.

The court in Martin v. Martin, 99 Conn.App. 145 (2007), held that “because of the important considerations for finality of judgments, however, a judgment should not be opened without a strong and compelling reason that ․ the motion should be granted only when there appears cause for which the court acting reasonably would feel bound and a duty to do so.”  Id., at 156.

The court finds no compelling reason to grant the plaintiff's requested relief.

Contempt

Civil contempt in family matters is governed by Practice Book § 25-27.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.”  In re Leah S., 284 Conn. 685, 692 (2007).   The movant has the burden of proof to show, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Isler v. Isler, 50 Conn.App. 58, 66-69 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 1 (2001).   Moreover, “a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.”   Wilson v. Wilson, 38 Conn.App. 263, 275-76 (1995).

In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt.   The court must find that there was a violation of said order and that the violation was willful.   Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding.  In re Leah S., 284 Conn. 685, 693-694 (2007).  Perry v. Perry, 222 Conn. 799, 805 (1992).  Avalonbay Communities v. Planning & Zoning Commission, 260 Conn. 232, 246, 796 A.2d 1164 (2002).  “In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order.”  (Citations omitted;  internal quotation marks omitted.)  Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994);  see also McGuire v. McGuire, 102 Conn.App. 79, 89, 924 A.2d 886 (2007).

While it is true that “inability to pay is a defense to a contempt motion,” it is likewise true that “the burden of proving inability to pay rests upon the obligor.”  Ahmadi v. Ahmadi, 294 Conn. 384, 397 (2009).

ORDERS:

1.  The motion to vacate, set aside, nullify and/or reopen is denied.

2. The motion for contempt is granted.

3. The plaintiff is ordered to pay to the wife $15,000 by way of a property settlement, alimony in the amount of $250 per week, retroactive to July 13, 2007, assign to the wife 50% of the marital portion of his retirement benefits as of July 13, 2007 and pay to her the sum of $92,750 for the medical bills expended as a result of her having had no health insurance.   In the event that the husband is unable or unwilling to pay to the wife the retroactive alimony, the sum of $15,000 and the sum of $92,750 within 60 days, he may convey to her an equivalent amount from what is left from his retirement accounts (after having conveyed to her 50% of the marital portion) and receive a credit, dollar for dollar, for that sum conveyed and continue to owe the balance to her.

Shluger, J.

Shluger, Kenneth L., J.