Matthew Woermer v. Mary Bertini (2010)

MEMORANDUM OF DECISION

This matter came before the court on January 12, 2010, January 16, 2010, January 20, 2010 and April 8, 2010 for a hearing on the defendant's Second Motion for Contempt;  Post-Judgment dated and filed February 11, 2009 (document # 115) and related discovery issues.   The plaintiff appeared through counsel and as a self-represented party, and the defendant was represented by counsel.   The essence of the motion is an allegation by the defendant that the plaintiff failed to establish a trust fund in a timely manner for the benefit of the parties' three children, namely, Peter, born August 7, 1996;  Emma, born August 16, 1998;  and Sarah, July 10, 2002.   Following the conclusion of the hearing the parties were ordered to file briefs.

The parties were married on October 26, 1990.   The marriage was dissolved by the court (Resha, J.) on January 18, 2007.   The parties' agreement of even date was approved by the court and incorporated by reference into the judgment.   At that time both parties were self-represented.   The court notes that at the time of the dissolution and the instant hearing, the plaintiff was and still is a practicing attorney licensed to practice in the State of Connecticut.

In Paragraph 7 under the caption “Children's Education” the parties' agreement contains the following language:

The Husband agrees to establish an education trust fund in the form of a Connecticut Higher Education Trust 529 College Savings Plan in the amount of $150,000 for the benefit of the minor children to be used for college/university tuition, books and room and board.   This trust fund shall be established by the Husband no later than September 1, 2007 (emphasis added).   Upon the exhaustion of the trust fund, the Husband shall pay 50% of college/university educational tuition and expenses of the children and the Wife shall pay 50% of the same.

The agreement was silent as to which of the parties was to select the CHET fund and the particular investment fund to be selected.

The court heard the testimony of the parties and their witnesses, reviewed the exhibits, briefs, financial affidavits of the parties and proposed orders and makes the following initial findings.

1. The plaintiff did not establish the trust fund within the time limit set forth in the judgment.

2. The plaintiff funded the trust fund with $100,000 on May 8, 2009.

3. Had the plaintiff funded the trust fund in the amount of $150,000, in the particular fund he selected on the date specified in the judgment, it would have been valued approximately $100,000 when the funding actually occurred.

The plaintiff asserted the following defenses for his failure to fund the trusts as agreed.

1. He lacked the financial ability to fund the trust at the time he agreed and was ordered to do so.

2. The defendant was aware of his alleged inability to fund the trust on the date specified.

3. Had he funded the trust as specified, it would have declined in value to $100,000.   In other words “no harm no foul.”

4. When he actually funded the CHET fund, he selected to purchase more “shares” than necessary to equate to the amount of $150,000, thereby benefiting the children.

5. Even though he selected a CHET fund, in hindsight it was a reasonably prudent investment and one he would have selected had he had the funds available on or before September 1, 2007.

6. Because of the relatively young ages of the children at the time of the funding there would be ample time for the fund to increase in value overall, notwithstanding the volatility of the market.

The defendant claims the plaintiff failed to keep her fully informed of the funding of the accounts.   She further claims that at the time of the dissolution she agreed to a lesser property distribution because the plaintiff was going to fund the trust with $150,000.   The court finds the defendant's claims to be credible.   The court further finds the plaintiff to be in contempt and his contempt to be willful.

The following orders shall enter:

1.  The plaintiff shall, within 60 days of this decision, add to the fund the difference between the present value of the fund and $150,000;  and

2.  The plaintiff is ordered to pay the sum of $5,000 in attorneys fees within 60 days of this decision.

SO ORDERED.

BY THE COURT,

CARUSO, JTR

Caruso, John R., J.T.R.