Jeffrey D. Glenn v. Diane P. Glenn (2011)

RULING ON MOTION FOR CONTEMPT # 162

Having considered the testimony and evidence presented at a hearing on March 28, 2011, the court finds that the plaintiff is in substantial compliance with the court's September 7, 2010 order inasmuch as he has been making payments toward the total amount of $9,834.50 ordered by the court.

The court (Boland, J.) issued the following order on September 7, 2010:

THE COURT:  ․ So he owes her $9,334.50 plus the $2,895 from the bonds, plus the $500 that's owed at the moment.   And I'm going to order that to be paid as follows:  The 2895 to Mrs. Glenn, Ms. Glenn now, by September 21st two weeks from today.   The remaining $9,834.50 to be paid in full when he receives either a lump sum payment from his Workers' Comp status, or a lump sum settlement or verdict in the personal injury file;  but pending that event at the rate of $100 a week.

THE WITNESS:  Now?

THE COURT:  Starting now, starting September 1, $100 a week ․

The defendant filed a motion for contempt for failure to pay the full amount of the post-majority support and for failing to make weekly payments.   The defendant alleges that the calculation of the $100 weekly payments should have started September 1 instead of September 21, and that the plaintiff is therefore $300 in arrears as a result.   The defendant also alleges that she did not receive check number 761 in the amount of $400, (D. Ex. B and Pl.Ex. 3), 50 the total arrearage is $700.   The plaintiff contends that he is current in his payments and that the order should be construed to provide for commencement of weekly payments as of September 21.   He concedes that he has made monthly, as opposed to weekly, payments.   He agreed that check number 761 issued in February 2011 has not been cashed.

With regard to the issue of when the $100 payments were to begin, the court finds the effective date to be September 21, 2010.   Indeed, defendant's own attorney stated in the motion for contempt filed October 7, 2010 that the order provided for payments “at the rate of $100 per week commencing September 21, 2010.”  (Motion for Contempt, at p. 1.) The transcript makes no reference to retroactive payments and the date of the hearing was September 7, 2010.   The court ordered the $2,985 from bonds to be paid by September 21, 2010 which, as noted, was two weeks from the date of the hearing.   Thus it appears that the transcript erroneously reflects September 1 as opposed to September 21.   Since the order provides for a total amount, which must be “paid in full when he receives either a lump sum payment from his Workers' Comp status, or a lump sum settlement or verdict in the personal injury file” the only issue is whether $300 is due now or whether the defendant will receive the $300 as a part of a lump sum payment or part of the weekly payments in the future.   Construing the order in the most logical and consistent fashion, this court concludes that the effective date was September 21, 2010.

The court therefore finds that the defendant has failed to establish a wilful violation of a court order, the plaintiff is current in his payments with the exception of check number 761, and the motion for contempt is hereby denied.   The Court notes that the order provides for weekly payments.   If the plaintiff believes he has a basis for seeking to modify the weekly obligation to permit monthly payments, he is directed to file such motion.   In the absence of any modification, the obligation is weekly.   With regard to the uncashed check, number 761 in the amount of $400, the plaintiff is hereby directed to reissue the check forthwith.   The request to require the defendant to pay the stop payment fee of $25 is denied.   Plaintiff's request for legal fees is also denied.

So Ordered this 31st day of March 2011.

Jongbloed, J.

Jongbloed, Barbara Bailey, J.