Dennis Lynn v. Christina Lynn (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT (# 132) AND PLAINTIFF'S MOTION FOR MODIFICATION (# 129)

A review of the record reveals that the parties were married on October 24, 1987 and their children are past the age of majority although one is under the age of 23 and is a full-time college student.

The husband initiated this action for dissolution of marriage on August 20, 2010.   The parties entered into a pendente lite agreement on October 19, 2011 whereby the husband was to pay the wife the sum of $700 per week alimony and to share equally the cost of their daughter's current college expenses.

The parties appeared, together with their attorneys on January 25, 2011 and then to February 17, 2011.

The court finds the following facts proven.

1. The parties entered into a pendente lite agreement on October 19, 2011 whereby the husband was to pay the wife the sum of $700 per week alimony and to share equally the cost of their daughter's current college expenses.

2. At the time of said order, the husband was receiving his New York City police pension in the net amount of $572 per week, rental income in the amount of $441 per week and income from his job as a security officer in an amount between $637 and $729 (averaged at $683) for a total of $1,696 per week net.

3. Since the time of said order, the husband lost his job as a security officer because he was unable to fulfill the physical demands of said position by running 1.5 miles in less than 16 minutes.   In all other respects, he is healthy enough to return to full-time employment.

4. As a result of his termination, he began collecting unemployment compensation in the amount of $480 per week and thus experiencing a loss of income of $203 per week.

5. As a result, the husband enjoys net passive income in the amount of $1,493 per week with stated expenses of $829 per week or a $664 per week surplus with which to pay his $700 per week temporary alimony order.

The husband's current financial affidavit appears to have some flexibility or discretionary expenses including entertainment, personal grooming, toiletries, rental repairs and automobile repairs.   In addition, the husband is free, 24 hours a day, seven days per week to earn some additional income.

6. In sharp contrast, the wife has a net income of $238 per week with weekly expenses of $1,417 per week or a shortfall of $1,179 per week.   Even with the $700 per week alimony order (which is taxable to her and tax deductible to him) she has a shortfall of $479 per week.

7. The husband has resorted to self-help in paying less than the court ordered weekly alimony and as of February 17, 2011, accumulated an arrearage in the amount of $2,162.73.

8. The court finds that the husband is in contempt for his willful failure to pay the court ordered alimony.

9. The court finds that the husband's loss of income is not a substantial change in circumstances justifying a downward modification of his temporary alimony order.

10. The wife's contempt motion alleges that the husband has failed or neglected to pay 50% of their daughter's college tuition as court ordered.

11. The court finds credible the husband's testimony that he is able and willing to make said college payments but that he had not received a copy of the tuition bill until February 17, 2011 in court.

12. The court denies the motion for contempt regarding the tuition bill because the husband did not have access to the bill at the time it came due.

13. The wife is not entitled to attorneys fees in the prosecution of her contempt motion as she would have incurred the same amount of time and expense in defending the husband's good faith motion for modification.

ORDERS

1.  The motion for modification of alimony is denied.

2. The motion for contempt regarding the college tuition is denied.

3. The motion for contempt regarding the nonpayment of alimony is granted.

4. The husband is ordered to pay 50% of the college expense of $10,417 or $5,208.50 within seven days to the wife.

5. The husband is ordered to pay the past due alimony in the amount of $2,162.73 within 14 days.

Shluger, J.

Shluger, Kenneth L., J.