Houry Diaby v. Moustapha Diaby (2010)

MEMORANDUM OF DECISION RE Plaintiff's Motion for Contempt # 196, Plaintiff's Motion for Contempt # 217, Plaintiff's Motion for Modification Post-Judgment # 203, Defendant's Motion for Modification # 198, Defendant's Motion for Modification # 220

The parties appeared for hearing on the above-captioned post-judgment matters on four days between May and November of this year, the plaintiff with counsel and the defendant representing himself.   The plaintiff's pending motions for contempt claim that the defendant owes her for daycare costs for their minor children.   Her motion for modification seeks an increase in alimony and an order that the defendant contribute toward the cost of college for their oldest daughter.¹  The defendant's motions seek a reduction in his alimony and child support obligation.   Both parties testified on these issues and submitted certain exhibits into evidence, and the matter is now ready for decision.   As discussed below, the plaintiff's motions for contempt # 196 and # 217 are granted, the plaintiff's motion for modification # 198 is granted in part (as to post-secondary educational support) and denied in part (as to alimony), and the defendant's motions for modification # 198 and # 220 are denied.

I BACKGROUND

The 17-year marriage of the parties was dissolved after trial in a memorandum of decision dated November 29, 2005.   By agreement of the parties, the parties were awarded joint legal custody of their three minor children-Ahissata, born on August 2, 1989, Bintou, born on February 14, 1994, and Ali, born on August 30, 2002, the plaintiff was granted primary residence, and the defendant was to have “liberal and reasonable access.”   The court, Swords, J., found that both parties were college-educated and had been employed throughout the marriage, that the plaintiff was then working 32 hours a week as a registered nurse earning $1,020 gross and $760 net per week, and that the defendant was a professor at the University of Connecticut earning $1,951 gross and $1,463 net (without including any deduction for his other children) per week.   The court noted that “in the past” the defendant also had “additional compensation” teaching summer school there.   The court's decision further noted that the defendant had three other children by another woman.   In February of this year, a fourth child was also born to him with his new wife.   The defendant was ordered to pay child support of $320 per week plus 41% ”of any work related child care costs” and of “any co-pays or uninsured” medical expenses “within 30 days of being presented with documentation of same.”   He was also ordered to pay alimony of $100 per week for 96 months and a dollar per year for 108 months thereafter, nonmodifiable as to term, and “annual income earned by Wife in an amount of $75,000 or less, in and of itself, shall not constitute a substantial change of circumstances” for “purposes of any modification.”

II PLAINTIFF'S MOTIONS FOR CONTEMPT # 196 AND # 217

The plaintiff introduced credible evidence showing that she has incurred daycare expenses in order to work in the amount of $42,674 from 2005 through May 19, 2010.   The defendant's 41% portion of this would be $17,496.34, none of which he has paid.   The defendant admitted that he had assumed the plaintiff was working, but did not make a similar assumption that she would need paid daycare since in the past she had often used relatives or live-in nannies to care for the children.   The plaintiff testified that they had discussed the daycare issue in 2007 during court proceedings on another issue but admitted that the first formal notice she had given to him that she was asking for daycare reimbursement was a letter sent by her attorney to Mr. Diaby in March 2009.   He acknowledged receiving various daycare records and bank statements but claimed that the bank records looked “doctored” to him.   He also admitted making no payments for daycare.

Under these circumstances, the court finds that the defendant has failed to comply with the court order that he pay for 41 percent of daycare provided for his children with the plaintiff so that she could work.  “The fact that the order had not been complied with fully, however, does not dictate that a finding of contempt must enter.   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, 494 A.2d 620 (1985).   A court must also find that the party's conduct was willful.  Kennedy v. Kennedy, 88 Conn.App. 442, 443-44 (2005).   Here the defendant has not offered a valid excuse for not paying for daycare after receiving formal notice from the plaintiff in March 2009, and his noncompliance with the court order is found to be willful.   He is therefore found in contempt, and the plaintiff's motions # 196 and # 217 are granted.

The daycare arrearage established by the evidence showed that the defendant owed $17,496.34 as of May 19, 2010.   Although plaintiff filed an “amended daycare contribution on November 2, 2010, showing additional expenditures for daycare after that date, the evidence had been closed by that point, and any additional amounts are thus not included in this finding.   Should defendant not pay any amounts for daycare owed after May 19, that arrearage should be the subject for another motion.

Furthermore, an allowance of statutory interest pursuant to General Statutes § 37-3a ² is at the discretion of the trial court, as is the rate of interest allowed.  Mihalyak v. Mihalyak, 30 Conn.App. 516, 620 A.2d 1327 (1993).   As the court noted in Maloney v. PCRE, LLC, 68 Conn.App. 727, 755, 793 A.2d 1118 (2002), “A trial court must make two determinations when awarding compensatory interest under § 37-3a:  (1) whether the party against whom interest is sought has wrongfully detained money due the other party;  and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.”  (Internal quotation marks omitted.)   Since the full arrearage is now due, any failure on defendant's part to pay those funds immediately constitutes wrongful detention of funds lawfully now due to the plaintiff.   Statutory interest shall therefore accrue on the arrearage from the date of this decision at the rate of six per cent simple interest per year.

Under General Statutes § 46b-87,³ the prevailing party in a contempt proceeding may be awarded a reasonable attorneys fee.  “The award of attorneys fees in contempt proceedings is within the discretion of the trial court.”   Tatro v. Tatro, 24 Conn.App. 180, 189, 587 A.2d 154 (1991).   The plaintiff submitted an affidavit from her attorney dated August 17, 2010, stating that he had expended ten hours to date on the contempt motion on behalf of the plaintiff, and that his fee is $275 per hour.   As also claimed in that affidavit, the plaintiff's attorney spent approximately one additional hour on the contempt matters thereafter.   The defendant neither objected to that affidavit nor sought an evidentiary hearing.   The court may therefore determine the reasonableness of plaintiff's counsel fee request on the record.  Smith v. Snyder, 267 Conn. 456, 480-81, 839 A.2d 589 (2004);  Arcano v. Board of Education of City of Stamford, 81 Conn.App. 761, 770, 841 A.2d 742 (2004).   The court has carefully reviewed that affidavit.   As our Supreme Court has noted, “Connecticut courts traditionally examine the factors enumerated in rule 1.5(a) of the Rules of Professional Conduct in calculating a reasonable attorneys fee award.”  Simms v. Chaisson, 277 Conn. 319, 332 (2006).⁴  The hourly rate charged by the plaintiff's attorney is a reasonable one for attorneys practicing in matrimonial and post-judgment proceedings in this judicial district.   Her attorney has proceeded skillfully in this matter.   After considering the factors set forth in rule 1.5(a), the court finds the amount of time claimed by her attorney to be reasonable, and awards a reasonable attorneys fee award to the plaintiff in the amount of $3,025.

The plaintiff has requested that the defendant be ordered to pay by a specific date or face incarceration.   An order of incarceration is appropriate to ensure the integrity of a judgment and enforce that judgment when a contemnor willfully disobeys a court order with which he is able to comply.”One of the remedies available to a court that finds a party in civil contempt due to that party's failure to pay court ordered support or alimony is the confinement of the contemnor until the contempt is purged.”  Emerick v. Emerick, 28 Conn.App. 794, 797, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).  “The court's authority to impose civil contempt penalties arises not from statutory provisions but from the common law ․ The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders.   In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.”  (Citations omitted.)  Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982).  “An order of confinement upon an adjudication of civil contempt must provide the contemnor with the key to his release in terms which are not impossible for him to satisfy.”  Mays v. Mays, 193 Conn. 261, 266, 476 A.2d 562 (1984).

The evidence here shows that the defendant has sufficient assets to pay the full amount of the arrearage, accrued statutory interest and counsel fees.   Despite his failure to obey the previous court order, however, the defendant has not shown any inclination to disobey the order of this court on the motion for contempt.   Rather than order incarceration at this time, the court instead orders that he pay the arrearage found herein, any accrued statutory interest, and counsel fees ordered in full within 90 days of the date of this decision, plus any additional days that may be allowed by the court,⁵ upon the granting of a written motion submitted by the defendant, for the purpose of allowing defendant sufficient time to retrieve the funds to pay the plaintiff.

III MOTIONS FOR MODIFICATION

Since the parties' motions for modification turn on related facts and address similar situations, they will be considered together.   The evidence shows that the plaintiff works full-time as a registered nurse for Visiting Nurse and Health Services of Connecticut and earns $1,361.38 gross and $1,013 net per week.   The defendant is a professor at the University of Connecticut, where his regular wages are $2,209 gross and $1,656 net (after deducting taxes, health insurance and court-ordered life insurance) per week.   In addition, in the summers 2009 and 2010, he taught in the summer term, as the dissolution trial court noted he had done in the past, and earned $6,014.16 gross in 2009 and at least $4,612 gross in 2010.   The regularity of this additional income counsels that it also be included in his income for purposes of determining child support, alimony, and post-secondary educational support.   Since the income varies from year to year, based on the course number of students that he teaches, the court will use the average of those two terms as his summer income.   Hence, his overall income, including average summer income, is $2,311 gross and $1,719 net per week.

A Child Support

The defendant's motions for modification both correctly assert that the parties' oldest daughter, Ahissata, has turned 18 and is no longer in high school;  hence, child support is now due to the plaintiff for only the parties' two remaining minor children.   When the defendant filed his motion for modification # 198, he had three other children by his current wife, and a fourth was born this year.   In seeking a modification of the current child support order, however, he is not entitled to a deduction from his income for any imputed support obligation he owes to his other children.⁶  Based on each party's net income (but without taking into consideration any imputed support obligation on the defendant's part for his four children with his second wife), the presumptive support amount is for the defendant to pay $355 per week in child support for three children.   This amount is more than the current order of $320 per week for four children, which had been based on his lesser income at the time of trial and had included a deduction for his other children.

Under General Statutes § 46b-86(a), child support orders may be modified “upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to Section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate.   There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial.”   Under our law, “[t]he party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.”  (Citation omitted;  internal quotation marks omitted.)  Fish v. Igoe, 83 Conn.App. 398, 406, 849 A.2d 910, cert. denied, 271 Conn. 921, 859 A.2d 577 (2004).   The defendant has not shown that he is entitled to a reduction in child support, and his request to do so, contained in motions # 198 and # 220 is denied.

B Alimony

The parties' competing motions to modify alimony are also governed by General Statutes § 46-86(a), which provides that “[a] final order for the periodic payment of permanent alimony ․ may be modified by the trial court upon a showing of a substantial change in the circumstances of either party.”   On each motion, the moving party has the burden of proof.  Fish v. Igoe, supra, 83 Conn.App. 398.  “Following such a finding the court then answers the question of modification, taking into account the general alimony factors found in C.G.S. § 46b-82.”  Gervais v. Gervais, 91 Conn.App. 840, 844, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony.   They have chiefly to do with the needs and financial resources of the parties ․ more specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties and their children, as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties.  (Citations omitted;  quotations omitted.)

Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).

In the present case, the incomes of both parties have increased by similar amounts.   The defendant's net income after taxes, health insurance, and court-ordered life insurance is $256 per week greater than his net income at the time of the dissolution.   The plaintiff's net income has increased $253 per week, from $760 to $1,013 per week.   The court does not find either party to have proven a substantial change in circumstances.   Plaintiff's request for an increase of alimony contained in her motion for modification # 203 is denied, as is defendant's request for a decrease in alimony contained in his motion for modification # 198.

C Post-Secondary Educational Support

The court retained jurisdiction in the judgment of dissolution to enter orders of post-secondary educational support pursuant to General Statutes § 46b-56c.   The parties' oldest daughter, Ahissata, is now in her fourth year of college and attends the University of Connecticut at Storrs.   The plaintiff's motion for modification # 203 has requested “an order requiring the Defendant to contribute to Ahissata's college expenses.”   The plaintiff argues that since she has paid for the first three years of Ahissata's college expenses, the defendant should pay three-quarters of the expenses for her senior year.   The defendant responds that Ahissata is getting free tuition this year because he is a professor at the university.   On the other hand, she does have room and board expenses, since she is living on campus, and day-to-day living expenses, which she is paying for out of her own income.

Under General Statutes § 46b-56c(c), a court may order parties to share in the cost of their children's college education if the court “finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.”   The facts of this case show that the parties would have provided support for Ahissata to attend college if the family had remained intact.   The statute also specifies various factors a court must consider in entering an order for post-secondary educational support.⁷  Under subsection (f) of the statute,⁸ any order for post-secondary education support must not exceed the cost for a party's child to attend the University of Connecticut, be treated as an in-state resident, and live on campus, a factor not affecting this case since Ahissata attends that institution.   After considering the evidence here and the factors set forth in the statute, the court orders the parties to divide the costs of Ahissata's qualifying expenses (not including tuition, for which there is no charge) this year such that plaintiff shall pay 44% and defendant shall pay 56%.   The defendant shall immediately reimburse the plaintiff for that percentage of Ahissata's room, board, and book expenses this academic year that she has paid to date.

BY THE COURT

STEPHEN F. FRAZZINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. Although plaintiff has at times urged the court also to order an increase in child support, she has not filed a motion specifically making such a claim, and the court therefore deems it inappropriate to consider such a request..  FN1. Although plaintiff has at times urged the court also to order an increase in child support, she has not filed a motion specifically making such a claim, and the court therefore deems it inappropriate to consider such a request.

FN2. General Statutes § 37-3a(a) provides, in pertinent part, as follows:  “[I]nterest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.”.  FN2. General Statutes § 37-3a(a) provides, in pertinent part, as follows:  “[I]nterest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.”

FN3. General Statutes Section 46b-87 provides in relevant part as follows:  “When any person is found in contempt of an order of the Superior Court entered under Section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person.”.  FN3. General Statutes Section 46b-87 provides in relevant part as follows:  “When any person is found in contempt of an order of the Superior Court entered under Section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person.”

FN4. Rule 1.5(a) of the Rules of Professional Conduct provides as follows:  “A lawyer's fee shall be reasonable.   The factors to be considered in determining the reasonableness of a fee include the following:  (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;  (3) The fee customarily charged in the locality for similar legal services;  (4) The amount involved and the results obtained;  (5) The time limitation imposed by the client or by the circumstances;  (6) The nature and length of the professional relationship with the client;  (7) The experience, reputation, and ability of the lawyer or lawyers performing the services;  and (8) Whether the fee is fixed or contingent.”.  FN4. Rule 1.5(a) of the Rules of Professional Conduct provides as follows:  “A lawyer's fee shall be reasonable.   The factors to be considered in determining the reasonableness of a fee include the following:  (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly, (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;  (3) The fee customarily charged in the locality for similar legal services;  (4) The amount involved and the results obtained;  (5) The time limitation imposed by the client or by the circumstances;  (6) The nature and length of the professional relationship with the client;  (7) The experience, reputation, and ability of the lawyer or lawyers performing the services;  and (8) Whether the fee is fixed or contingent.”

FN5. Since the undersigned judge is not assigned to the Judicial District of Tolland for this judicial term, any such motion shall be heard by a judge now sitting in that district or as may be assigned by the administrative judge of that district to hear the matter..  FN5. Since the undersigned judge is not assigned to the Judicial District of Tolland for this judicial term, any such motion shall be heard by a judge now sitting in that district or as may be assigned by the administrative judge of that district to hear the matter.

FN6. Under the child support guidelines, “a parent defending against a proposed modification of an existing child support award” may claim a deduction from gross income for an amount determined by guidelines for support of a dependent biological child living in that parent's household for at least the preceding six months.   As the preamble to the child support guidelines explains:  “The commission continues unchanged from the 1999 guidelines the deduction from gross income in the amount of an imputed support obligation for a qualified child.   A qualified child is defined as one other than the subject of the support determination, who resides with the parent, is dependent on the parent for support, and for whom the parent has not claimed a deduction for court-ordered support payments.   A parent may claim the deduction in the context of an initial support determination or when defending against a proposed modification.   A parent cannot claim the deduction when seeking a modification of an existing child support award.”  (Emphasis added.)   Child Support and Arrearage Guidelines (2005), preamble, § (h) [captioned “Income determination”] (2) [captioned “Allowable deductions”] (G) [captioned “Imputed obligation for qualified child.”]   Under these rules, the defendant is not entitled to claim such a deduction for his children with his new wife in the determination of his net income on his motion for modification..  FN6. Under the child support guidelines, “a parent defending against a proposed modification of an existing child support award” may claim a deduction from gross income for an amount determined by guidelines for support of a dependent biological child living in that parent's household for at least the preceding six months.   As the preamble to the child support guidelines explains:  “The commission continues unchanged from the 1999 guidelines the deduction from gross income in the amount of an imputed support obligation for a qualified child.   A qualified child is defined as one other than the subject of the support determination, who resides with the parent, is dependent on the parent for support, and for whom the parent has not claimed a deduction for court-ordered support payments.   A parent may claim the deduction in the context of an initial support determination or when defending against a proposed modification.   A parent cannot claim the deduction when seeking a modification of an existing child support award.”  (Emphasis added.)   Child Support and Arrearage Guidelines (2005), preamble, § (h) [captioned “Income determination”] (2) [captioned “Allowable deductions”] (G) [captioned “Imputed obligation for qualified child.”]   Under these rules, the defendant is not entitled to claim such a deduction for his children with his new wife in the determination of his net income on his motion for modification.

FN7. Section 46b-56c(c) of the General Statutes provides in relevant part as follows:  “[T]he court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:  (1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;  (5) the child's preparation for, aptitude for and commitment to higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend.”.  FN7. Section 46b-56c(c) of the General Statutes provides in relevant part as follows:  “[T]he court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:  (1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;  (5) the child's preparation for, aptitude for and commitment to higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend.”

FN8. Section 46b-56c(f) of the General Statutes provides as follows:  “The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.   An educational support order may also include the cost of books and medical insurance for such child.”.  FN8. Section 46b-56c(f) of the General Statutes provides as follows:  “The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.   An educational support order may also include the cost of books and medical insurance for such child.”

Frazzini, Stephen F., J.