Terry Aliano v. Michael Aliano (2011)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION FOR ALIMONY, CHILD SUPPORT AND CONTEMPT, PENDENTE LITE AND THE DEFENDANT'S MOTION FOR CONTEMPT, PENDENTE LITE

A review of the record reveals that the parties were married on February 24, 2007 and have one child, issue of their marriage, Giovanni Aliano born March 2, 2008.   The parties appeared, with counsel, on March 30, 2011.   The court has fully considered the criteria of Connecticut General Statutes §§ 46b–56 and 46b–83, as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FINDINGS OF FACT:

1. The parties presently reside in the spacious marital residence together with the wife's 22–year–old son and 11–year–old daughter from previous relationships and the three-year-old son, issue of the marriage.

2. Living under one roof has proven to be intolerable for all concerned.

3. Following a hearing which concluded on March 29, 2011, the court issued a memorandum of decision on March 30, 2011 granting exclusive possession of the marital residence to the plaintiff wife until July 1, 2011 whereupon the defendant husband would have exclusive possession.

4. The parties returned to court on March 30, 2011 to present evidence and arguments regarding these remaining financial issues.

5. The wife owns a three-bedroom home in Brooklyn, Connecticut, but entered into a one-year lease with another family commencing February 11, 2011, while these issues were pending.   The rental income approximately equals its carrying costs.

6. The husband has owned the marital residence for 13 years, well before the parties met and married.   He earns all of the money and pays all of the bills.

7. The present parenting plan of the three-year-old child is that the plaintiff wife, presently a stay-at-home mom, has primary responsibility for care-giving and that the defendant husband exercises reasonable access.   While the defendant husband has a demanding work life and is the president of several closely held corporations, he appears to have the ability to create a flexible work schedule for himself.

8. The defendant testified that his gross annual salaries total $90,000 plus a $15,000 per year car allowance.   The comptroller from one of his companies reiterated that testimony.   She also testified, curiously, that she earns more than the defendant, the president and that, in fact, seven employees earn more than the defendant who is the president and chief executive officer.

9. The plaintiff wife testified credibly that they have enjoyed what many would consider a lavish lifestyle and that their spending habits have been consistent throughout the course of the marriage, through and including the present.

10. The parties have historically been able to pay all of their living expenses solely from the defendant's income.   The defendant's financial affidavit dated October 18, 2010 shows credit card debt of $11,000.   He showed the same amount of credit card debt 13 months later, and as recently as March 29, 2011 he showed his credit card debt as being $15,000 or only slightly more than 1 1/2 years ago.   These facts cast doubt on his claim that the family lives beyond what his income can support and suggests that income, in excess of his stated $90,000 per year, exists.

11. On at least two occasions, the defendant was ordered to pay counsel fees of $10,000 each which he accomplished quickly notwithstanding the fact that he showed no such available funds on his financial affidavits.   Moreover, his own legal fees which the court estimates to be substantial are current or nearly current on all of his financial affidavits.

12. The defendant was recently able to borrow $30,000 from his sister.

13. The defendant's financial affidavit shows a loan due to his employer in the amount of $175,000 for which no payment has ever been made, no note evidencing this debt exists and no demand has ever been made.

14. The defendant has no vehicle expenses and all of his gasoline and vehicle maintenance are provided by one of his businesses.

15. The court finds that the defendant's actual income and ability to access large amounts of additional money exceeds his stated income.

16. The court finds the defendant's earning capacity to be $150,000.

17. The plaintiff wife who has been out of the work force for at least three years has primary care giving responsibilities to their three-year-old and to her 11–year–old child from a previous relationship.   There was no evidence presented as to her earning history, education or vocational skills.

18. The court is unable to find that the wife presently has any meaningful earning capacity given the costs for day care and her having been out of the workforce for a lengthy period of time.   Notwithstanding, it is apparent that she will need to return to the workforce at sometime in the near future.

19. The parties had entered into an agreement dated August 26, 2010, which became a court order, which called for “the defendant will pay all of the family expenses (meant in its most generic sense) and give the plaintiff $300 per week for her personal needs.   The plaintiff will use her best efforts to reduce the family expenses.   The manner of payments for the $300 will be the plaintiff using her credit card for the payments and the defendant will pay those bills each month.”

20. The defendant's motion for contempt alleges that he complied with said order, paid all of the family expenses and gave the plaintiff a line of credit on a credit card in the amount of $2,000 per month (in excess of the $300 per week order) and that she overspent and did not use her best efforts to reduce the family expenses.

21. The plaintiff's motion for contempt alleges that the defendant failed to pay all of the family expenses and that she was forced to borrow and go into debt to meet the weekly needs of the family.

22. Notwithstanding the defendant's claim that the plaintiff overspent, the defendant was unable to prove that the spending habits of the family after August 26, 2010 were in excess of their spending habits prior to that date.

23. The plaintiff produced her credit card statements (exhibits 4, 5 and 6) which evidenced all of her charged expenses.   There is no evidence that her personal expenses exceeded the agreed upon amount and the majority of the charged expenses were for household items which were the husband's responsibility.   Moreover, the charged items were generally for meals with the children (Dunkin Donuts, pizza, McDonald's, and 99 Restaurant), groceries, CVS, gasoline, non-lavish clothing, and some medical expenses.   While one might reasonably argue that the wife's spending is excessive and lavish, it does not appear to this court that it was unusual given the standard of living which this family has been accustomed to enjoying.

24. The plaintiff has been forced to borrow, go into debt and invade the security deposit for her rental house to stay current with the household expenses which had been ordered as the husband's responsibility.   The court does not find that the defendant's failure to pay these expenses was a willful violation of the existing order but may be explained, in part, by a complete breakdown of civil communication between the parties.   Nonetheless, the court intends to fashion a remedial order to effectuate the spirit and demands of the order of August 26, 2011.

25. There was evidence that the husband's employer pays 100% of any unreimbursed medical expenses or co-pays.   The wife testified that she is in possession of numerous such expenses awaiting reimbursement.   The husband testified that he has never received said documents but, if presented with them, would process them for reimbursement immediately.

LEGAL DISCUSSION:

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007), Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).

“It also is especially appropriate for the court to consider whether the defendant has willfully restricted his earning capacity to avoid support obligations ․” Weinstein v. Weinstein, 280 Conn. 764, 772 (2007).   Moreover, “lifestyle and personal expenses may serve as the basis for computing income where conventional methods for determining income are inadequate.”   Carasso v. Carasso, 80 Conn.App. 299, 304 (2003), cert. denied, 267 Conn. 913 (2004).  Milazzo–Panico v. Panico, 103 Conn.App. 464, 468 (2007).

“In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt.   The court must find that there was a violation of said order and that the violation was willful.   Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding.”  In re Leah S., 284 Conn. 685, 693–94 (2007).

“Even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988).  “Even though a party's actions did not constitute contempt, a court's remedial orders were well within its general remedial discretion.”  Fitzgerald v. Fitzgerald, 16 Conn.App. 458, 553 (1988).

“In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with a court order.”  Fuller v. Fuller, 119 Conn.App. 105, 115 (2010).

ORDERS:

1. The husband shall pay child support to the wife, based on his earning capacity found to be $150,000 in the amount of $316, the presumptive child support guideline amount.   In addition, he shall pay 84% of any unreimbursed medical, dental, psychological, or ophthalmological expenses or work-related day care but it presently appears that there are no such out-of-pocket expenses.

2. The husband is already obligated, pursuant to this court's order of March 30, 2011 to pay all of the reasonable household expenses and that order shall continue.

3. Upon the wife's vacating the marital residence and requiring housing, the husband shall pay alimony in the amount of $300 per week.

4. On or before June 1, 2011, the husband shall pay to the wife the sum of $3,000 for relocation expenses.

5. The wife shall be permitted to earn a safe harbor of up to $300 per week before such earnings are considered a substantial change triggering a modification of her alimony award.

6. The defendant's motion for contempt is denied.

7. The plaintiff's motion for contempt is denied.

8. The defendant shall pay to the plaintiff the sum of $5,000 on or before July 1, 2011 to reimburse her for expenses which she made or was obligated to make pursuant to the order of August 26, 2011.

9. The plaintiff shall deliver to the defendant all bills and receipts for medical and dental reimbursement within five days.   The defendant shall process those receipts and bills through his employer and deliver to the plaintiff all sums paid or an explanation of benefits for those not paid.

10. The plaintiff shall be entitled to the rents collected for the Brooklyn, Connecticut property and shall be responsible for all its expenses.

11. All orders not inconsistent with these orders shall remain in full force and effect.

Shluger, J.

Shluger, Kenneth L., J.