Linda Richter v. Jesse Richter (2011)

MEMORANDUM OF DECISION

The instant matter is a most unusual example of a motion for contempt for failure to pay child support as ordered by the court.   What makes it unusual is that, unlike the vast majority of such cases in which no one has decent records, in this matter both parties were meticulous in their record keeping.   Despite the fact that each party had clear records showing what was paid and what was received, a dispute arose over the payment of less than seven hundred ($700) dollars of support.   Both parties testified and both presented themselves as honest and sincere;  both had supporting documentation to bolster their version of the facts.   The plaintiff's version was, of course, that the payments had not been made;  the defendant countered that the payments were made, but the checks had not been cashed.

The facts are really very simple.   The parties were divorced in October of 2008 (Caruso, J.T.R.).   They had a shared parenting arrangement for their son Cody (DOB 2/18/99).   By agreement, the parties asked the court to establish the child support at $34 per week which was a deviation based on the shared parenting schedule.   The parties both testified that despite the weekly order, it was defendant's practice to pay monthly.   He would count the number of Fridays in any given month and issue a check based on $34 times the number of Fridays.   It was also his practice to prepare a cover letter to the plaintiff detailing the amount of the check and the check number as well as the weeks covered by the payment.   He also would indicate the number of weeks by dates on the memo section of the check.   The defendant would then hand-deliver the support check and the cover letter.   The plaintiff testified that when she received the items she would record the date that she received the payment date, the check number and amount.

The dispute arose over payments for the weeks occurring during the months of September, October, November and December of 2010.   The plaintiff testified that she did not receive any payment for those months, and when she realized the problem, she emailed the defendant on December 5, 2010, asking him to “meet your legal financial obligations in a timely fashion.”   The defendant testified that he was quite annoyed to receive this email because it had been sent to his employment email address and not his personal email account.   It was his feeling that the plaintiff had done this specifically to annoy him.   Nevertheless, he did check his records and realized that he had not issued a check for November.   He then wrote out the check for November in the amount of $136 covering the four Fridays in that month.   The defendant testified that he also issued a check for December in the amount of $136 to cover the four Fridays in that month.   True to his custom, he also prepared two cover letters, one for each check.   He testified that he delivered them to the plaintiff.

The plaintiff's records indicate that she had not received any payments from the defendant since she received a payment on August 29, 2010, which included a check dated August 3, 2010 in the amount of $136.   She also testified that it was not uncommon for the defendant to deliver his support payments late, sometimes several month late.   In February, she received three cover letters and the corresponding checks on the 17th of that month, according to her records.   In July, her records again show that on one day during that month she received three separate payments.   Comparing the plaintiff's records to the cover letters presented by the defendant shows that the payment package the plaintiff claims to have received on February 17, 2010 would have included payments and cover letters for December 2009, January 2010 and February 2010.   The defendant testified that he had found the material contained in his July delivery in his car and mailed it to the plaintiff with a note explaining the late delivery.   That payment package contained the payments for April, May and June 2010.

It would appear, based on the defendant's undisputed history that the plaintiff's records present a more accurate accounting of the payments actually made and received by her.   The court does not doubt that the defendant issued the checks and cover letters on the dates recorded on those documents, but there is no record to support that they were delivered on time, if at all.   To the contrary, there is a record to support the fact that on more than one occasion, for whatever innocent reason, he failed to deliver the payments in a timely manner pursuant to either the court order or the established practice of the parties.

The plaintiff further seeks from the court an order denying the defendant the benefit of the minor child as a dependency for the tax year 2011 under the terms of their judgment.   Section 9 of the agreement that was incorporated into the court's judgment reads in part:  “If at any time during a given calendar year either Party has been in arrears more than 15 days in any of his or her support obligations pursuant to Paragraphs 4-8 herein then he or she shall forfeit his or her right to claim the Child as a tax dependent for said year.”   Paragraphs 4-8 encompass the support obligations of each parent.   The plaintiff filed her motion seeking that relief on January 5, 2011.   At that time, the defendant was not in arrears more than 15 days in that year since there had not been 15 days in 2011 by that time, and the plaintiff's own records also show that the defendant made the January 2011 payment on time.¹  The defendant did accrue an arrearage in 2010, but he did not have the child as an exemption in 2010, so the provision would have no effect.

The Court, having reviewed the testimony of the parties and evidence presented, makes the following findings.

1. The defendant owed support to the plaintiff in the amount of $4,114 based on the calculation that there have been 121 Fridays from the date of the first payment due on October 10, 2008 through January 28, 2011;

2.  The defendant has paid to the plaintiff a total of $3,434 through and including the payment made and received by the plaintiff on January 10, 2011;

3.  The defendant is in arrears $680;

4.  There is no finding of contempt made against the defendant.   The failure to pay was not willful, but an error on the part of the defendant;

5.  The failure of the defendant to respond to the email alerting him to the shortfall was directly responsible for the plaintiff having to incur legal fees to enforce the term of the judgment;

6.  The representation by counsel for the plaintiff that he expended at least six hours at his regular hourly rate of $240 is a reasonable legal fee for the prosecution of the instant motion.

Accordingly, after reviewing the statutes of the State of Connecticut and having heard the motion, the court HEREBY ORDERS:

1.  The defendant shall pay to the plaintiff the sum of $680 within seven calendar days of this order representing the child support arrearage through and including the month of January 2011;

2.  The defendant shall reimburse the plaintiff the sum of $1,440 in legal fees and $90.60 in Marshal's fees, for a total of $1,530.60 within 30 calendar days of this order.   Said order to pay legal fees is made pursuant to CGS § 46b-62;

3.  All future child support payments shall be secured by an immediate wage withholding order;  and

4.  The arrearage found in this order shall not deprive the defendant of his rights under § 9 of the party's agreement as incorporated in their dissolution judgment dated October 8, 2010.

BY THE COURT

Adelman, J.

FOOTNOTES

FN1. The defendant's cover letter and check are dated January 4, 2011-one day before the actual filing of the plaintiff's motion, and which according to the plaintiff's records, was received on January 10, 2011.   The first Friday in January 2011 was the 7th..  FN1. The defendant's cover letter and check are dated January 4, 2011-one day before the actual filing of the plaintiff's motion, and which according to the plaintiff's records, was received on January 10, 2011.   The first Friday in January 2011 was the 7th.

Adelman, Gerard I., J.