Marianne Olsen v. Fusaini Mohammadu (2011)

MEMORANDUM OF DECISION

This is a matter that the court has had before it on a number of occasions this judicial term.   The immediate issues are twofold:  there is an issue relating to the defendant's failure to pay a specific sum on or before February 7, 2011, and the defendant's motion to modify all financial orders based on a perceived change in circumstances.   A brief history of the post-judgment proceedings is necessary to understand the present issues.

The matter went to judgment on August 5, 2009 (Barall, J.).   The court awarded the plaintiff alimony for five years in the amount of $777.00 per week and child support for the one minor child in the amount of $334.00 per week for a total weekly payment of $1,111.00.   Defendant's motion to modify the financial orders, based on a reduction in salary after he relocated to Connecticut from Florida, was denied by this court on October 28, 2010.¹  On January 11, 2011, the court found the defendant in contempt for failure to pay alimony and other obligations.   An arrearage was found, and after credits applied, he was ordered to pay a total of $13,291.32.   The sum of $6,435 was to be paid on or before February 7, 2011, and the balance was to be paid at the rate of $111 per week.   The lump sum was not paid as ordered.   Plaintiff's counsel was not personally present for the hearing and the substitute counsel withdrew the request for incarceration.   The court then ordered the lump sum to be added back to the total arrearage and the weekly order for arrearage payments doubled to $211 per week.   Defendant's counsel pointed out that the extra money would then exceed the allowable maximum withholding amount under federal law and the parties agreed to take up the issue at the hearing already scheduled for the parenting plan issues on March 14, 2011.   A wage withholding order for the alimony, child support and arrearage payment is now in place.   The order collects $1,222 weekly.²

The discussion will focus on the modification request first.   The defendant, a physician, argues that his student loans have finally become due and payable.   He has deferred payment for the maximum number of years permitted and such deferments have added significantly to the principal obligation.   Amortized over a thirty-year period, his weekly obligation for that debt is now $243.46.

His argument to the court was that in the original judgment, the court (Barall, J.), fashioned the alimony and support orders in an attempt to equalize the incomes of the parties.   Now, with the defendant's lowered annual salary and this new debt obligation, those incomes are no longer equalized.   He further argues that because the medical education and the deferment of the repayment of that debt was a decision the parties made when they were married, they should now share the obligation of the repayment.

The plaintiff counters that the defendant already attempted a modification based on his lower income and did not prevail.   Since the court has already made one post-judgment ruling, the court should not be bound by the rationale of the original trial court in 2009.   The court, while not totally bound by the earlier reasoning, does not agree with the plaintiff.   The decision ruling that the lowered salary is not a change of circumstances because it is based on a voluntary action of the defendant keeps the parties as the trial court found them in 2009 except that the defendant must meet his obligations without any modification.   The defendant is certainly entitled to seek relief if he believes that there has been a significant change in the financial circumstances.   Having made that statement however, the court does not find that there has been any such significant change.

The defendant's student loans have always been on his financial affidavit.   In the more recent court appearances, they have always had the notation that payment was being deferred.   That was not the case when the trial court entered its judgment.   On the signed financial affidavit filed with the court on June 4, 2009, the defendant clearly shows the student loans and represents to the court that he is making $500 per week in payments against that debt.³  The defendant testified in the current hearing that at the time of the trial some payments on the loans were being made.   The trial court ruled that each party should be liable for their own liabilities with the exception of one medical/dental bill for the minor child.   Since the trial court already dealt with the issue of the student loans, there is no change of circumstances other than about a five percent increase in the balance and a weekly payment reduction of about one-half.   Accordingly, the motion to modify based on the student loan repayment is denied.

Turning to the arrearage payment that was due on February 7, 2011, the court asked the parties for their proposed orders on that issue.   The defendant argued that the sum should just be added back into the arrearage and paid out with the weekly arrearage payment of $111.   The plaintiff asked that any extra funds received by the defendant in the form of tax refunds or bonus payments be paid to the plaintiff until the lump sum amount of $6,435 is paid in full.   The defendant objected and claimed that he should have control over the management of his funds since he had other obligations besides the plaintiff.

The defendant's proposed orders are offensive to the court.   Following such a course of action would completely negate the original order for a lump sum payment.   It would allow the defendant to simply come into the court and say, “I cannot afford it,” without any consequences whatsoever.   This defendant has been found in contempt previously, but it would appear the impact of such orders has not altered his understanding of what a court order means.   The essential difference between the requirement to pay the $6,435 on February 7, 2011 and his other obligations is that the former is an order of the court.

Accordingly, until the sum of $6,435.00 is paid in full, the defendant is ordered to pay plaintiff's counsel any and all funds above his regular paycheck amount of $2,884.62 gross weekly income plus $144.23 gross overtime income, whether in the form of a tax refund, bonus, raise or in any other form, within two business days.   He shall also forward to her a copy of the check stub or other transmittal information so that she has sufficient information to identify the payor and to determine the gross amount and the net payment being made.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. That decision is currently under appeal to the Appellate Court under docket number AC 32889..  FN1. That decision is currently under appeal to the Appellate Court under docket number AC 32889.

FN2. This amount includes the arrearage payment of $112 per week..  FN2. This amount includes the arrearage payment of $112 per week.

FN3. The obligation is a little less than $10,000 lower than it is on the current affidavit at $204,940..  FN3. The obligation is a little less than $10,000 lower than it is on the current affidavit at $204,940.

Adelman, Gerard I., J.