Peter Larson v. Matilde Larson (2010)

MEMORANDUM OF DECISION

The marriage of the parties was dissolved by decree of this court on January 31, 2003, at which time the court drafted a Memorandum of Decision dated January 30, 2003 (# 146.00) and filed the following day.   The parties have two minor children, to wit:  Peter J. Larson, born February 25, 1993, and Nina Larson, born June 30, 1997.   Among other things, the decree provided for joint legal custody of the children, with their principal residence with the defendant wife (“wife”).   She remains the principal caregiver.   The plaintiff husband (“husband”) was ordered to pay alimony in the amount of $500.00 per week and child support in the amount of $347.00 per week.   Since the date of the judgment, the husband has relocated to California and remarried.

On or about, May 27, 2004, the husband moved for a modification (# 178.00) of the parenting arrangement and of his alimony and support obligations.   The court referred the parenting matter to Family Relations.   At that time, the court found the husband's net income to be $78,000.00 per annum.   After a hearing, the court denied the motion for modification of the alimony obligation due to the husband's failure to establish a substantial change of circumstances, but it did reduce his child support obligation to $280.00 per week, all as set forth in a Memorandum of Decision (# 201.10) dated January 11, 2005, and as corrected by a further Memorandum of Clarification (# 229.10) dated July 7, 2005.

In due course, the wife moved to open and modify the husband's child support obligation by way of a Motion to Open (# 235.00) dated July 12, 2005.   Following a hearing, the court granted the motion and increased child support to $424.00 per week, all as set forth in a Memorandum of Decision (# 247.10) dated November 15, 2005.   As of the date of that order, the court found that the net income of the husband was $118,924.00 per annum and that of the wife was $30,680.00 per annum.   The husband took an appeal (# 253.00) from this decision on December 23, 2005, which decision was affirmed by the Appellate Court on February 20, 2007.  (AC27236).

The present matter comes before the court by way of the husband's Motion for Modification # 258.00. dated February 16, 2006,¹ in which he asserted three grounds in support of his claim that a substantial change of circumstances has occurred warranting a modification, to wit:  (1) his move to California, (2) allegations of parental alienation by the wife, and (3) a claim that the underlying decision was “illegal from inception” as “violating Sec. 46b-215d.”   On their face, each of these grounds fails, thus leaving the motion vulnerable to dismissal.   First, the husband's relocation to California is not a substantial change of circumstances since the date of the last order-he had already moved prior to the last order.  Borkowski v. Borkowski, 228 Conn. 729, 737 (1994).   Secondly, it is well-settled law that there is no linkage of one's obligation to provide support for minor children to the exercise of visitation.  Raymond v. Raymond, 165 Conn. 735, 742 (1974).   Accordingly, allegations of parental alienation are not sufficient grounds in and of themselves to warrant modification of child support.   Finally, the husband's claim of illegality of the court's decision, is a disguised attempt to prosecute a further appeal, now rendered moot by the action of the Appellate Court.

The foregoing notwithstanding, on the first day of the hearing, the husband's counsel raised the issue of the changes in income of the respective parties as the gravamen of his case, and the fact that the husband was now unemployed.   No objection was interposed by the wife.  (TR. 8/19/2010, pp.   5-6) Subsequent to the first hearing date, the court raised the issue of subject matter jurisdiction sua sponte, but allowed the husband to amend his Motion for Modification prior to the next scheduled court date, and he did so.

For her part, the wife has filed Motions for Contempt (# 296.00 and # 297.00) and a Motion for Counsel Fees (# 295.00), all dated August 4, 2010.   Counsel for the wife indicated on the record that another Motion for Contempt (# 297) relating to fees for appellate counsel was moot.²  The parties agreed by way of Stipulation (# 294.00) dated June 22, 2010, that there would be no retroactivity before January 1, 2009, and that each party reserved their right to argue for or against retroactivity as the case may be, with the exception of any procedural defects regarding the service of the husband's motion.

The husband is unemployed at present, although he continues to look for employment.   He is by training and profession an accountant since his graduation from college in 1981.   At one point, he was a licensed CPA in Connecticut, but currently he is unlicensed in any state.   As of the date of the last order (November 15, 2005), the husband's net income was found to be $118,924.00.   The evidence disclosed that he has been employed on a more or less regular basis, and that he earned $126,094.00 (Exhibit # 7), $108,458.00 (Exhibit # 6), $80,144.00 (Exhibit # 2), and $101,903.00 (Exhibit # 3) per annum in 2006, 2007, 2008, and 2009 respectively.   At present, his financial affidavit shows that he receives $450.00 per week in unemployment compensation.   The other income reported thereon is not a regular source.   His annual income from unemployment compensation is $23,400.00 with a net of $21,684.00.   Since 2003, he has worked as a consultant, most recently under a six-week contract which ended in February 2010.   Thereafter, he was maintained on the books as an employee until May 2010, at which time he was terminated and paid a small amount of accumulated vacation pay.   He has withdrawn monies from his § 401(K) plan to help meet his obligations.

The wife has continued her employment as a school teacher, and she supplements her basic income from teaching with tutoring.   The parties stipulated that her current gross annual income is $55,000.00.

The court heard the parties over the course of three days, including final argument.   At the close of the evidence, counsel for the wife presented the court with an Affidavit of Attorneys Fees (# 316.00) dated November 1, 2010.   Pursuant to General Statutes § 46-62, the court, the court offered counsel for the husband the opportunity to challenge the reasonableness of the fees set forth in the Affidavit.   He opted to do so, and the matter was set down for a hearing on November 17, 2010.   Counsel for the husband appeared, but he offered no testimony or evidence challenging the reasonableness of the fees, and the court concluded the hearing and closed the evidence.

FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at the hearing, as well as the factors enumerated in General Statutes § 46b-56, 46b-82, 46b-84, 46b-86, 46b-87, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:

1. An award of periodic alimony or child support may be modified upon the demonstration of a substantial change of circumstances since the date of the last order, unless the order itself clearly precludes modification.  General Statutes § 46-86(a);  Borkowski v. Borkowski, 228 Conn. 729, 737 (1994);  Spencer v. Spencer, 71 Conn.App. 475, 481 (2002);  Schorsch v. Schorsch, 53 Conn.App. 378, 382 (1999).

2. That at the time of the initial order addressing the issue of alimony, the trial court found the net income of the husband to be $85,452.00 per annum; ³  there have been no modifications of the alimony order since the date of the last order;  and that there has been a substantial change of circumstances, in that there has been a significant decrease in the net income of the defendant, in that the husband has been unemployed since February 2010;  that he has made an effort to obtain gainful employment since that date;  that his principal source of income is unemployment compensation;  that his current net income is $21,684.00 per annum;  and that it is equitable and appropriate to modify his alimony obligation.

3. That in entering an order for child support, a court must consider both General Statutes § 46b-215b and the Child Support and Arrearage Guidelines Regulations (“Guidelines”), as well as the factors set forth in General Statutes § 46b-84;  that child support orders must be based upon the net income of the parties.  Morris v. Morris, 262 Conn. 299, 306 (2003);  Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001).

4. That at the time of the last child support order, the court found the net income of the husband to be $118,000.00 per annum and that of the wife to be $30,680.00 per annum;  that there have been no modifications of the child support order since the date of the last order;  that there has been a substantial change of circumstances, in that there has been a significant decrease in the net income of the defendant, in that the husband has been unemployed since February 2010, and, in addition, there has been a significant increase in the net income of the wife;  that the husband has made an effort to obtain gainful employment;  that his principal source of income is unemployment compensation;  that his current net income is $21,684.00 per annum;  and that it is equitable and appropriate to modify his child support obligation.

5. That in arriving at the net income of the respective parties, as a starting point, the court used the husband's gross unemployment compensation of $450.00 per week and the stipulated income of the wife of $55,000.00 per annum;  that the net income of the husband is $417.00 per week;  that the net income of the wife is $1,058 per week;  and that the alimony/child support order of the court should be based thereon.  Ludgin v. McGowen, 246 Conn. 413 (2001).

6. That based upon the net income of the parties, the presumptive basic child support is $348.00 per week;  and that the husband's share is $115.00 per week.

7. That where retroactivity is sought pursuant to General Statutes § 46-86(a), motions for modification of alimony must be served in accordance with General Statutes § 52-50;  that the purpose of that provision is to accord due process to the other party.  Shedrick v. Shedrick, 32 Conn.App. 147, 151-52 (1993);  that service of the Motion for Modification was made on April 20, 2006 (# 262.00);  that on June 22, 2010, the parties stipulated and agreed that any order shall not be retroactive to a period prior to January 1, 2009 and that each party reserved the right to argue for or against any such order;  that an order of retroactivity is within the discretion of the court;  and that under all the facts and circumstances, it is equitable and appropriate that the court make its order retroactive to March 1, 2010.⁴

8. That as of January 11, 2010, there was an arrearage in the amount of alimony and child support in the amount of $99,809.12 (Exhibit # Q);  that said arrearage accumulated through the fault of the husband, in that he was gainfully employed and earning substantial compensation during the period of its accrual, and therefore had the means to comply with the orders of the court.

9. That a finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001);  that the existing orders of alimony and child support are clear and unequivocal;  that the husband has failed to fully comply with said orders;  that the evidence supports a finding that the husband is in breach of the orders of the court and that he had the means to comply with said orders, as is evidenced by his continued employment for the years 2006 through 2009, and, in addition, through February 2010;  that his failure to comply with the alimony order was wilful and without good cause;  and that the court finds him to be in contempt thereof.

10. That, in general, an award of attorneys fees in a family matter is within the discretion of the court based upon a review of the financial ability of each party.  General Statutes § 46b-62;  that the Connecticut Supreme Court has held that such an award must be based upon a finding by the court that there are ample liquid assets with which to make the payment.  Koizim v. Koizim, 181 Conn. 492, 500-01 (1980);  that, however, in the event of a breach and a finding of contempt, the court may order the payment of same without consideration of their respective financial abilities.  General Statutes § 46b-87;  and that at such a hearing before the court, a party must have “an opportunity to challenge the reasonableness of the fees.”  Dobozy v. Dobozy, 241 Conn. 490, 500-01 (1997).

11. That counsel for the wife has submitted an Affidavit of Fees (# 316.00) dated November 1, 2010, in the amount of $26,796.00;  that the court has reviewed same and finds them to be fair and reasonable;  that the husband was given the opportunity to challenge the reasonableness of the fees;  and that he offered no credible evidence that said fees were unreasonable;  and that it is equitable and appropriate that the husband be responsible for the payment of said fees.

ORDER

Motions 258, 295, and 296 having been heard, they are HEREBY GRANTED, AND IT IS HEREBY ORDERED THAT:

1. Commencing March 1, 2010, and weekly thereafter, the husband shall pay to the wife the sum of one ($1.00) Dollar per year as and for periodic alimony, until the death of either party, the remarriage of the wife, whichever shall sooner occur.

2. Commencing March 1, 2010, and weekly thereafter, the husband shall pay to the wife the sum of $115.00 per week ($498.00 per month) as and for child support, until such time as the oldest child shall reach the age of eighteen years or shall be otherwise emancipated, at which time child support for the remaining child shall be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct.   The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).

3. Commencing January 1, 2011, and monthly thereafter, the husband shall pay to the wife the sum of $85.00 per week until such time as the arrearage in the amount $99,809.12 is paid in full or until further order of court, subject to adjustment as follows:  To the extent that payments by the husband on or after March 1, 2010 to date have exceeded the order as modified, he shall be entitled to a credit and said sums shall be deducted from the arrearage;  to the extent that his payments for the months of January and February 2010 were less than his existing obligation, said sum shall be added to the arrearage.

4. In addition to the foregoing, for so long as the husband has an obligation to pay alimony, child support, or both pursuant to this decree, or until further order of court, he shall comply with the following conditions:

a.  Within one week of obtaining any gainful employment (including self-employment) he shall notify the wife in writing of the nature of the job, the employer, or in the case of self-employment, the client of clients, and the actual or anticipated salary or rate of compensation;

b. Every three months commencing April 1, 2011, he shall send a copy of his most recent pay stub to the wife;  and

c. Within one week of filing, he shall send to the wife a copy of his federal and state income tax returns, including all schedules, together with copies of all Forms W-2 and 1099.

5. Within one year from the date of this order, the husband shall pay to Douglas J. Wells, Esq. the sum of $26,795.00, as and for the legal fees and costs of suit incurred by the wife in connection with this matter.

6. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the financial orders.

7. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).

In all other respects, except as set forth above, the existing orders of the court shall remain in full force and effect.

THE COURT

SHAY, J.

FOOTNOTES

FN1. A duplicate of the motion (# 262.00), with the process server's Return dated April 20, 2006 attached, was filed with the court..  FN1. A duplicate of the motion (# 262.00), with the process server's Return dated April 20, 2006 attached, was filed with the court.

FN2. A review of the file and the transcript shows that counsel and the court incorrectly referred to this motion as # 295..  FN2. A review of the file and the transcript shows that counsel and the court incorrectly referred to this motion as # 295.

FN3. The trial court noted that the husband's gross income was $10,167.00 per month, with deductions amounting to $3,046.00, which leaves a net income of $7,121.00 per month, or $85,452.00 per annum..  FN3. The trial court noted that the husband's gross income was $10,167.00 per month, with deductions amounting to $3,046.00, which leaves a net income of $7,121.00 per month, or $85,452.00 per annum.

FN4. Where an amended motion for modification has been filed, the court may order retroactivity back to the date of the original motion, where there has otherwise been compliance with service consistent with said statute, on the theory that it relates back to the initial motion and is therefore considered a pending motion for purposes of the statute.   Lucas v. Lucas, 88 Conn.App. 246, 257 (1988)..  FN4. Where an amended motion for modification has been filed, the court may order retroactivity back to the date of the original motion, where there has otherwise been compliance with service consistent with said statute, on the theory that it relates back to the initial motion and is therefore considered a pending motion for purposes of the statute.   Lucas v. Lucas, 88 Conn.App. 246, 257 (1988).

Shay, Michael E., J.