Jamie Styrcula v. Keith Styrcula (2011)

MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION (# 257.00)

The marriage of the parties was dissolved by decree of this court on November 9, 2004.   At that time, the parties entered into an Agreement (# 143.10) which was approved by the court and incorporated by reference in its decree.   They are the parents of three children:  Joshua A. Styrcula, born October 25, 1993;  Eric B. Styrcula, born May 20, 1996;  and Brian A. Styrcula, born April 20, 2001.   This case has been marked by numerous court filings, some literally within days following the date of the decree.   The present matter comes before this court by way of the plaintiff wife's (“wife”) Motion for Contempt (# 252.00) dated June 10, 2010, as well as the defendant husband's (“husband”) Motion for Modification (# 257.00) dated August 17, 2010.

Among other things, the Agreement provided for the payment of unallocated alimony and child support in accordance with a sliding scale, based upon the husband's “gross annual earned income,” as follows:

$0.00—$250,000 @ 55%

$250,001.00—$550,000.00 @ 35%

Above $550,000 @ 0%

The payments terminate, based upon sooner of the following to occur:  the death of either party, the remarriage of the wife or her cohabitation as defined by statute, or November 9, 2014.   Furthermore, the payments are non-modifiable as to term or amount, except in certain specific instances as set forth in Article 3.4 of the Agreement.   Excluded from the calculation is any “intellectual property income” of the husband, except where there has been a modification of the amount of alimony.

For his part, the husband may move for modification only if any one of the following occurs:  (1) the wife's annual gross earnings exceed $150,000.00 per year;  (2) he suffers an involuntary termination of employment;  or (3) in the event of a “substantial, non-voluntary, downward change to his yearly employment income caused by a disability or termination from employment.”   In addition, at the time of the execution of the Agreement, it was stipulated that $400,000.00 shall be the “benchmark” for any determination of a substantial downward change in the husband's income.   The threshold question for this court is whether or not the husband has met one or more of the above conditions precedent.

Approximately one year following the decree, in December 2005, the husband was terminated from a position with J.P. Morgan Chase.   The wife does not challenge this assertion.   At that point, the husband became and remains self-employed.   He derives his income in part as a consultant to Numerix, and as a consultant to Pomegranate Ventures, LLC, the principal of which is his current companion, Sholeh Janati.   As a self-employed person, Article 3.6b provides that the calculation of the husband's alimony obligation shall be based upon his “pre-tax income from self employment” based upon “gross receipts less reasonable and actual business expenditures.”

Subsequent to the decree dissolving the marriage, in the course of deciding a previous Motion for Contempt (# 220.00) filed by the wife, this court (Harrigan, J.) issued a Memorandum of Decision (# 232.00) dated February 11, 2009, wherein it found the husband in contempt, and, in addition, that he had an earning capacity of $250,000.00 per annum.   The court later determined an arrearage m unallocated alimony and support based upon that imputed income and set a purge amount.   For her part, the wife claims that the husband is in violation of Article 3.7 of the Agreement, in that he has voluntarily taken steps to reduce his obligation to pay alimony and support.   The court does not have sufficient credible evidence before it in order to reach that conclusion.

The court heard testimony over the course of two days, concluding on March 1, 2011 with final argument.   At that time, the parties stipulated for the record that the arrearage as of March 15, 2011, would be $193,410.76.   In addition, the wife has asked the court for an award of attorneys fees.   The court allowed her counsel one week to file an affidavit and opposing counsel another week to review it and to ask for a hearing.   Counsel filed an affidavit (# 261.00) on March 10, 2011, and there being no request for a hearing, the pleadings closed on March 15, 2011.

FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes §§ 46b–56, 46b–82, 46b–84, 46b–86, and 46b–215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:

1. That a finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001).

2. That the unallocated alimony and support order of November 9, 2004, was clear and unequivocal;  that there have been no modifications of the original unallocated order since the time of its entry;  that the evidence does not support a finding that the husband is in wilful breach of the orders of the court;  and that, however, the evidence does support a finding that he has failed to comply with said orders and that he is in breach thereof.

3. That there is an agreed-upon arrearage in unallocated alimony and child support in the amount of $193,410.76 through March 15, 2011.

4. That, in general, an award of periodic alimony may be modified upon the demonstration of a substantial change of circumstances, unless the order itself clearly precludes modification.  General Statutes § 46b–86(a);  Borkowski v. Borkowski, 228 Conn. 729, 737 (1994);  Spencer v. Spencer, 71 Conn.App. 475, 481 (2002);  Schorsch v. Schorsch, 53 Conn.App. 378, 382 (1999).

5. That the “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.”  Hayes v. Beresford, 184 Conn. 558, 568 (1981);  and that “a judgment rendered in accordance with ․ [an agreement] ․ of the parties is to be regarded and construed as a contract.”  Barnard v. Barnard, 214 Conn. 99, 109 (1990);  Issler v. Issler, 250 Conn. 226, 235 (1999).

6. That where, as here, the parties have set clear conditions for modifiability in their Agreement, the court should give effect to them;  and that “courts of law must allow parties to make their own contracts.   It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree.   Whether provident or improvident, an agreement moved on calculated considerations is entitled to the sanction of the law.”  Crews v. Crews, 295 Conn. 153, 169 (2010).

7. That the Agreement of the parties contains a clear and unequivocal provision precluding modification of the amount or term of alimony, except under certain specific circumstances;  that the husband has asserted that he was terminated from his employment at J.P. Morgan Chase in December 2005;  that the wife has offered no evidence that said termination was anything but involuntary;  and that therefore, the husband has satisfied the provisions of Article 3.4(2).

8. That, in addition to the provisions of Article 3.4(2), the parties have agreed that $400,000.00 shall be the “benchmark” for any determination of a substantial downward change in the husband's annual income from employment.

9. That the evidence demonstrates that the husband's “pre-tax income from self employment” is $73,980.00;  that, therefore, this constitutes a substantial downward change in his income;  and that based upon the formula set forth in Article 3.2 of the Agreement, his unallocated alimony and child support obligation is $40,689.00 per annum, or $3,390.75 per month.

10. That where, as here, a substantial arrearage has accumulated, prior to granting any modification, the court must ascertain whether or not the “arrearage has accrued without sufficient excuse” and whether or not it is appropriate to order that the same be satisfied in whole or in part prior to any such modification.  Practice Book § 25–26(a);  and that in the absence of a finding of contempt, it is equitable and appropriate that the issue of the satisfaction of the arrearage be part of the overall order of the court.

11. That, pursuant to General Statutes § 46b–62, where there is a breach of a court order, but no finding of contempt, it is within the discretion of the court to award reasonable attorneys fees, so long a party against whom they are assessed is given an opportunity to challenge the reasonableness of the fees.   Dobozy v. Dobozy, 241 Conn. 490, 499–500, (1997);  Sardilli v. Sardilli, 16 Conn.App. 114 (1988);  Nelson v. Nelson, 13 Conn.App. 355 (1988).

12. That the court has reviewed the Affidavit of Fees (# 261.00) dated March 10, 2011, as on file, and finds it to be fair and reasonable;  and that it is equitable and appropriate under all the circumstances, in particular, the husband's lack of cooperation and candor during the discovery process, that he be responsible for all of the fees incurred by the wife as set forth therein.

13. That in entering an order for child support, a court must consider both General Statutes § 46b–215b and the Child Support and Arrearage Guidelines Regulations (“Guidelines”), as well as the factors set forth in General Statutes § 46b–84;  and that, however, the Court finds it is appropriate and equitable to apply the deviation criteria set forth in § 46b–215a–3(b)(5) of the Child Support and Arrearage Guidelines Regulations on the basis of the coordination of total family support.

ORDER

The foregoing motions having been heard, the relief sought by plaintiff's Motion for Contempt (# 252.00) is HEREBY GRANTED IN PART and DENIED IN PART, and the relief sought by the defendant's Motion for Modification is HEREBY GRANTED to the limited extent that the court has based the award of unallocated alimony and child support on the husband's income from self-employment and not his earning capacity, and that, therefore, the initial order based upon the Agreement of the parties remains in full force and effect.   ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1. Commencing April 1, 2011, and monthly thereafter, the husband shall pay to the wife the sum of $3,390.75 as and for periodic unallocated alimony and child support, consistent with Article 3.2 of the Agreement.

2. Commencing July 1, 2011, and the first of every quarter thereafter, the husband shall pay to the wife, the sum of $10,000.00, until such time as the aforementioned arrearage in the amount of $193,410.76, together with simple interest at the statutory rate on judgments, is paid in full.

3. The husband shall be liable for the sum of $6,975.00 as and for attorneys fees and costs incurred by the wife in connection herewith.   Commencing May 1, 2011, the husband shall pay to Lawrence M. Lapine, Esq. the sum of $1,000.00, and thereafter, the sum of $250.00 per month until said fees shall be paid in full.

4. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52–362(b) for payments received from Numerix and Pomegranate Ventures, LLC pursuant to consulting contracts, in order to secure the payment of the unallocated alimony and child support order.

5. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25–59A(h).

THE COURT

Shay, J.

Shay, Michael E., J.