Taras Korytnyuk v. Olena Korytnyuk (2011)

MEMORANDUM OF DECISION

I

The marriage of the parties was dissolved June 10, 2009, in Bridgeport, Connecticut.   The plaintiff moves for modification of child support and for refund of alimony paid to the defendant by wage withholding since August 15, 2010.   The plaintiff claims the alimony termination provisions of the parties' written agreement, incorporated by the court into the judgment, were self-executing.   He claims alimony automatically terminated as of August 15, 2010.   The defendant points out that the alimony and child support form an unallocated order in the judgment.   She claims a court order is needed to effectuate the termination of alimony and the implementation of a stand-alone child support order.   The defendant further argues that even if the judgment can be interpreted as self-executing for the cut off of alimony, the plaintiff bore the burden of undoing the wage withholding;  if he delayed in taking the necessary steps to end wage withholding, any resulting overpayment should be deemed voluntary and therefore not subject to recoupment.   For reasons set forth herein, the court grants to the plaintiff the relief he seeks.

II

The plaintiff first claims no further court order was necessary for alimony to terminate on August 15, 2010.   On its face, Paragraph 16.1 of the judgment appears to support the plaintiff's claim.   But there are problems.   The relevant portions of the judgment read as follows:

16.1 HUSBAND shall pay Seven Hundred and Forty–Five ($745.00) Dollars per week in advance as unallocated support to the WIFE until the earlier of the death of either party, remarriage of the WIFE, statutory cohabitation of the WIFE, August 15, 2010.   All support payments shall be paid by Immediate Wage Withholding Order.   Until such order is processed, HUSBAND shall pay all support payments directly to WIFE upon receipt of his paycheck which is on the first and the fifteenth day of every month.   Support payments shall be calculated and paid pro-rata to the pay periods;

16.2 If an allocated child support order to the MOTHER entered it would be the amount of $421.00 per week in advance, which is in accordance with the Child Support and Arrearage Guidelines of the State of Connecticut.   No allocated child support shall enter at this time.   Upon termination of the unallocated order as described above, the parties shall exchange current financial information as required to calculate a child support order pursuant to the Child Support and Arrearage Guidelines of the State of Connecticut.   FATHER shall pay 50% and MOTHER shall pay 50% of any unreimbursed medical expenses and no work-related day care expenses, if any, which is a deviation from the Child Support and Arrearage Guidelines of the State of Connecticut in consideration of total family income until August 15, 2010 or further order of this court.   Said child support obligations for the minor children shall continue until a minor child attains the age of 18 years, marries, dies, or becomes emancipated whichever event shall first occur.   In the event a minor child is still in high school at the age of 19 years, then child support shall terminate upon the child's 19th birthday.

The first problem with the wording of the judgment is the weekly calculation of support, but the bi-monthly payment of support.   The judgment does not do the math to specify the amount to be paid in each bi-monthly installment.   Next, although the judgment states how the parties are to handle any delayed implementation of wage withholding, it is problematic that the judgment does not state how or by whom wage withholding is to be halted or altered when alimony terminates on August 15, 2010.   There is no provision for the possibility that wage withholding may continue at $745 per week because of a delay in implementation of a change.   Next, despite finding the putative child support guidelines amount as $421, Section 16.2 states explicitly that “no allocated child support shall enter at this time.”   The judgment does not say that a $421 per week allocated child support order shall enter by default upon the termination of alimony until a new child support obligation is calculated.

The trial court has jurisdiction to clarify an ambiguous judgment at any time.  Sosin v. Sosin, 300 Conn. 205, 218 (2011).   To deal with the omissions and uncertainties in the judgment, it is necessary to find what the wording implies.   First, because of the short period of time from the judgment, June 10, 2009, to the end of alimony, August 15, 2010, one can infer that the alimony was rehabilitative in nature.   The defendant's testimony before this court confirms this supposition.   The defendant received her degree as a registered nurse after the judgment, but before August 15, 2010, and commenced full-time employment.   This fact lends logic to the expectation that alimony would terminate automatically.   Second, the words “or further order of this court” were included in a draft of the parties' agreement, but were explicitly crossed out of Paragraph 16.1 in the final version presented to the court.   It appears the parties intended the August 15, 2010 termination of alimony to be self-executing.   Why else would they expressly delete the alternative method of modification via a “further order of this court”?   Third, Section 16.2 expressly contemplates a continuation of child support.   Only the amount must be determined by a comparison of financial information.   If the parties had intended an end to all unallocated support, including child support, as of August 15, 2010, it would have been necessary for the court to find the payment of child support inappropriate and state the relevant deviation criteria for such an action.  Misthopoulos v. Misthopoulos, 297 Conn. 358, 999 A.2d 721 (2010).   There are no such findings in the decree.   On the contrary, the final two sentences of Section 16.2 assure that child support shall continue through the statutory period of obligation.   No break in child support is mentioned.   Where the judgment speaks to an intentional deviation (no contribution to work-related day care expenses), these parties put the deviation criterion into their agreement.   It is implied, therefore, that the parties intended child support to continue after August 15, 2010, in accordance with the child support guidelines, which were determined to be $421 per week, not $745 per week.  “The interpretation of a judgment may involve the circumstances surrounding the making of the judgment ․ Effect must be given to that which is clearly implied as well as to that which is expressed ․ The judgment should admit of a consistent construction as a whole.”  Sosin v. Sosin, supra, 300 Conn. 217–18, quoting Phoenix Windows, Inc. v. Viking Construction, Inc., 88 Conn.App. 74, 77, 868 A.2d 102, cert. denied, 273 Conn. 932, 873 A.2d 1001 (2005).   This court finds the cessation of alimony on August 15, 2010, was self-executing and the amount of child support commencing on that date was $421 per week in the absence of a further court order.

III

The plaintiff next seeks recoupment of the alimony overpaid from August 15, 2010, through February 28, 2011.   He encountered difficulties getting the wage withholding of alimony stopped.   He assumed the over withholding would cease automatically, as per the judgment.   When he saw the full $745 continuing to come out of his pay, he went to his employer to request the necessary revision.   His employer refused to make a change in the absence of new paperwork from the court.   The plaintiff next visited the clerk's office at the court, but was rebuffed in his attempts to get new wage withholding forms put through since the clerk's office required a new court order to change the existing wage withholding order.   On January 3, 2011, the plaintiff filed this post-judgment motion to modify the wage withholding.   He was self-represented at the time of the filing of the post-judgment motion, but subsequently hired legal counsel.   The plaintiff was not unduly dilatory in pursuing relief from the court.   The plaintiff claims overpayment of $324 per week (the difference between $745 and $421).

The defendant asserts the plaintiff is seeking a retroactive modification of alimony in violation of General Statutes § 46b–86(a).   That statute provides in relevant part:  “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to [General Statutes § ]52–50.”   The plaintiff seeks modification of child support pursuant to § 46b–86(a), but he does not seek modification of alimony pursuant to that statute.   He has claimed consistently that he need not seek a modification of alimony because the termination of alimony was automatic.   Because this court has already agreed with the plaintiff that the cessation of alimony was self-executing as of August 15, 2010, the defendant cannot prevail in her claim of retroactive modification.  Krichko v. Krichko, 108 Conn.App. 644, 651–52, 948 A.2d 1092 (2008);  Mihalyak v. Mihalyak, 30 Conn.App. 516, 520–21, 620 A.2d 1327 (1993).   Alimony ended on August 15, 2010;  this court has made no modification of the judgment.   Since no alimony accrued between August 15, 2010, and February 28, 2011, the plaintiff is properly entitled to reimbursement of the sums he paid to the defendant during that period.   Mihalyak v. Mihalyak, supra, 30 Conn.App. 522.

IV

FURTHER FINDINGS AND ORDERS

Three hundred twenty-four ($324) dollars per week is equivalent to $1,403.89 per month in overpaid alimony.   The overpayment continued for six and a half months and resulted in an overpayment of $9,125.29.   The court is satisfied from the evidence presented that the defendant has no liquid assets from which to make a current repayment to the plaintiff.   Her financial situation is further complicated by the reduction of child support to the current guidelines amount of $358 per week by order of this court on March 1, 2011.   The court makes no order at this time setting a repayment schedule for the $9,125.29 owed by the defendant to the plaintiff.   The plaintiff is barred from imposing an offset against child support for the repayment of the debt.   Until such time as the debt is repaid in full, the defendant shall provide to the plaintiff each year copies of her federal and state income tax returns, together with copies of all schedules and attachments, within two weeks of the filing of the returns.   If the debt is not paid in full by February 28, 2022, then, and in that event, interest shall commence effective March 1, 2022, as to any then remaining balance, at the rate of ten percent per annum.   If the March 1, 2011 wage withholding order of $358 per week for child support is delayed in implementation for any reason so that the defendant receives more than $358 per week ($775.61 bi-monthly), she shall immediately remit to the plaintiff the full amount of the overpayment.

BY THE COURT,

Heidi G. Winslow, Judge

Winslow, Heidi G., J.