Beth MacKinnon v. Ian MacKinnon (2011)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR CONTEMPT, POST–JUDGMENT DATED NOVEMBER 30, 2010 (No. 150) and DEFENDANT'S MOTION TO MODIFY/TERMINATE ALIMONY, POST–JUDGMENT DATED DECEMBER 1, 2010 (No. 151).

These matters come before the court by virtue of defendant's post-judgment motions to find the plaintiff in contempt (No. 150), filed November 30, 2010 and to modify alimony (No. 151), filed on December 1, 2010.   The court conducted a hearing on the motions on April 11, 2011.   Each party was represented by counsel at the hearing.

As financial issues were in dispute at the contested hearing, the court ordered the unsealing of the financial affidavits pursuant to Practice Book § 25–59A.

I FINDINGS OF FACT

The parties' thirteen-year marriage was dissolved by decree dated November 20, 2009.   At the time of the decree, the parties filed an Agreement and Stipulation dated November 30, 2009 (the agreement) which was incorporated by reference in the decree.

The following provisions of the agreement are relevant to the motions at hand.

Section 3 of the agreement relates to support of the children.   It includes a provision to the effect that the defendant shall be entitled to claim the three children as exemptions on his tax returns as long as he is current with his child support obligations.   The agreement further provides:  “[h]owever, if the taking of any exemptions are of no value to the [defendant], the [defendant] shall relinquish his right to said exemptions to the [plaintiff] for that tax year.”  (Agreement, page 3, Section 3.C.)

Section 3.G. of the agreement provides that “either party may have gross income of an additional $40,000 over the gross income reflected on their current Financial Affidavits as filed with the Court without the other party seeking a modification of child support and/or alimony.”  (Agreement, page 4.)

Section 4 of the agreement relates to the alimony payable by the defendant to the plaintiff.   Pursuant thereto the defendant is to pay to the plaintiff $700 a week in alimony until January 1, 2013 at which time the alimony is automatically reduced to $400 a week.   Alimony is to be paid until the earlier to occur of (i) death of either party;  (ii) the remarriage of the plaintiff;  or (iii) December 31, 2016.   The agreement provides further that the alimony obligation is non-modifiable as to duration and “[s]aid alimony is further subject to the terms and conditions of Section 46b–86(b) of the Connecticut General Statutes.”  (Agreement, page 4, Section 4.B.)

Payment of the unreimbursed medical expenses for the children was allocated 50% to the plaintiff and 50% to the defendant pursuant to Section 6.A. of the agreement.  (Agreement, page 5.)

Section 11 of the agreement concerns the division of personal property between the parties and provides the same is to occur to the mutual satisfaction of the parties.   The court retained jurisdiction over the division of personal property, provided, however, the agreement required the parties to attempt to mediate before returning to court over the issue.   The cost of the mediation was to be borne equally by the parties.  (Agreement, page 8.)

Additional facts relating to each motion are set forth below.   The court is compelled, however, to make note of the inability of the plaintiff to testify with any reasonable degree of certainty or clarity during the defendant's direct examination of her.   For example, when questioned on the financial affidavit she swore to and submitted to the court on February 16, 2011 (in connection with a hearing on child support) she was asked if the financial affidavit was accurate;  her response:  “What do you mean by accurate?” ¹  Her inability to recall significant details, including, without limitation, those related to her buyout of a lease of a home in Avon at the end of 2009, damaged her credibility.   Her recall and ability to discern the meaning of questions markedly improved during questioning by her counsel.

A. Defendant's Motion for Contempt dated November 30, 2010 (No 150)

1. The defendant requests the court find the plaintiff in contempt for failure to (i) pay unreimbursed medical expenses as required by the agreement;  (ii) claiming the children as exemptions on her 2009 tax return;  and (iii) failing to permit the defendant to retrieve his personal property.

As to the first claim, the defendant submitted, as Exhibit B, a list of medical expenses he incurred on behalf of the children and an allocation of the amount payable by the plaintiff pursuant to the agreement.   The plaintiff testified that she has paid some, but not all, of the medical bills submitted to her.   She claims that sometimes the defendant fails to deliver a receipt to her as verification of the expense and she also exercises self-help by offsetting bills she has paid against bills the defendant has paid.   She claims that she paid for all activities in which the children participated while they all lived with her.   The plaintiff testified that, as a result of her offsets and payments, she is current with respect to payments she owes to the defendant, except for one—which one was not expounded upon.   She did not, however, produce any proof to verify the offsets or payments.

As to the claim relating to the plaintiff wrongfully taking the tax exemptions, the plaintiff testified that she took the exemptions on her 2009 tax return on the advice of her accountant.   She never asked the defendant to speak to her accountant.   The plaintiff did, however, request the defendant to provide her with information to determine if he would receive a benefit from taking the children as exemptions—he did not respond.   The defendant testified, which testimony was not contradicted, that he would have benefitted from taking the children as exemptions on his 2009 tax return.

Lastly, as to defendant's request of the court to find the plaintiff in contempt for failure to provide him with his personal property, the parties attempted to mediate the dispute through the auspices of Attorney Maureen Lovejoy.   The parties agreed during mediation that no marital property would be disposed of by the plaintiff before determining if the defendant wished to have the same.

The defendant claims the parties reached an agreement on the property to be returned to him through mediation.   He unilaterally elected, in lieu of paying Attorney Lovejoy, to prepare an agreement to memorialize the agreement of the parties, to utilize his legal skills and prepare the same, including a list of the property to be returned to him.   The plaintiff claims the list of property the defendant belatedly produced varied from the list of items to which she had agreed.

The credible evidence is the plaintiff did not turn over to the defendant all of the items he sought and that some of the property was given away—like a swing set—before determining if the defendant desired to have it.   Further, given the amount of the charitable deduction taken by the plaintiff on her 2009 tax return in the amount of $35,000 of goods, valued at $48,000, the court makes the reasonable inference that other marital property was donated to charity without first determining if the defendant wished to have any of it.   Her testimony that she did not give away anything in which the defendant was interested was not credible.

The court, however, finds that there was no mutual agreement as to the complete list of personal property to be returned to the defendant and although the parties proceeded to mediation as required by the agreement, the process was not concluded.

2. Analysis, Additional Findings of Facts and Conclusions

When an allegation of contempt is made “the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.”   Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).

In connection with the defendant's motion for contempt, the court finds the existence of a valid court order dated November 20, 2009 which required the plaintiff and the defendant to equally share the unreimbursed medical expenses incurred on behalf of the children.   The court further finds the language requiring the payment of 50% of the unreimbursed medical expenses to be clear and unambiguous.   The credible evidence is the plaintiff has not reimbursed the defendant for 50% of the unreimbursed medical expenses incurred on behalf of the children.   The court, accordingly finds the plaintiff violated the terms of a valid, clear and unambiguous court order.   The plaintiff had financial wherewithal to comply with the court order and her failure to do so was wilful.

The court finds the existence of a valid court order dated November 20, 2009 which permitted the defendant to take the children as tax exemptions as long as he was current with his child support obligations;  there is no evidence or claim that he was not current with his child support payments.   The order further permits the plaintiff to take the exemptions only if the “taking of the exemptions is of no value” to the defendant.   The defendant testified, without contradiction, that he would have received a benefit from taking the children as exemptions.

The court finds the existence of a valid court order dated November 20, 2009 which allowed for the parties to mutually agree upon the division of their personal property.   The court does not find a mutual agreement to exist as to the property to have been divided between the parties—both parties want the following:  beverage cooler silver;  shop vac;  soccer balls;  Sony recorder;  and the American Girl dolls and clothes.   The parties had an ability to resolve the matter with the mediator, but the defendant in electing to prepare the documents/list necessary to finalize the division of the assets hindered the parties' ability to come to a resolution.   The plaintiff has agreed to return to the defendant the following from his list:  the gas grill, copies of photographs and the shelf for the ship.

The court, after examining all of the circumstances surrounding the violation, finds the plaintiff willfully violated the orders of the court to pay 50% of the unreimbursed medical expenses to the defendant.

The court does not find the plaintiff in contempt for taking the children as exemptions on her 2009 tax return as the defendant did not respond to her inquiries to determine if he would receive a benefit nor does the court find the plaintiff to be in contempt for failure to divide the personal property as the parties failed to reach an agreement as to what was to be returned.

The defendant's motion is GRANTED.   The court finds the plaintiff to be in contempt for failure to pay the unreimbursed medical expenses.   Accordingly, the court orders the plaintiff to pay the defendant $505.64 as her 50% share of the unreimbursed medical expenses.   Commencing June 2011, the plaintiff is to pay $50 a month in reduction of such amount on or before the 15th of each month with the last payment to be in the amount of $55.64.

Despite finding the plaintiff is not in contempt for taking the children as exemptions on the 2009 taxes, the defendant was entitled to do so.  “[E]ven 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);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).   Accordingly, the court exercises its remedial discretion and orders the plaintiff to sign, execute, deliver and/or file the necessary Internal Revenue Service forms to permit the defendant to amend his 2009 tax return to claim the exemption for the three minor children.

Further, the parties are to make arrangement through counsel for the plaintiff to transfer to the defendant the following personal property:  the gas grill, the wood shelf for the ship, the shop vac, the photographs she has copied for the defendant and the photographs of the defendant's ancestors.

B. Defendant's Motion to Modify/Terminate Alimony, Post–Judgment (No. 151)

1. The following additional facts are relevant to the defendant's motion to modify or terminate alimony.

After the dissolution and the sale of the marital home, the plaintiff and the children lived for a few months in a home on Stagecoach Road in Avon. On or about December 2009 she and the children moved to a home on Briar Hill Road in Avon. Sometime in November 2010—around Thanksgiving—she moved to Indian Pipe Trail where she resides with Eric Pritchard.   The plaintiff admitted that Pritchard is her “significant other.”

Pritchard owns the property in which he and the plaintiff live.   In addition to the plaintiff and Pritchard, Katelynn (the oldest daughter of the parties) lives there full time.   Madalyn (the youngest child of the parties) lives some of the time with the plaintiff and some of the time with the defendant.   The parties' son, David, lives with the defendant.   In addition, Pritchard has two sons who live with the plaintiff and Pritchard on a regular schedule.

Commencing in January 2011 the plaintiff began paying rent to Pritchard in the amount of $1,850 a month.   Her prior rent at the Stagecoach Road property was $2,500 a month, plus utilities and at Briar Hill was $2,200 a month, plus utilities.

In February 2011 the plaintiff filed in court her financial affidavit wherein she certified as being true and accurate her payment of the following household expenses on a weekly basis:  rent at $427, fuel at $69;  electric at $23, gas at $23;  water at $17.   There were no expenses shown for food other than $185 a week for the children's groceries.   The financial affidavit filed on April 11, 2011 does not include expenses for utilities at the Indian Pipe Trail home because she is not paying them.

Contrary to the plaintiff's testimony that she is expected to pay for utilities, Pritchard testified the arrangement between he and the plaintiff is for her to pay $1,850 a month for rent—and such payments also includes a fixed contribution to utilities.   In addition to the $1,850 for rent, the plaintiff contributes $300 a month toward the food bill, but that amount is admittedly (by the plaintiff and by Pritchard) less than one-half of the monthly food bills for the household.

Pritchard pays the majority of the household utility costs and contributes more than one-half of the funds necessary to purchase food for the household.   Pritchard has on more than one occasion loaned money to the plaintiff to assist her in satisfying some of her financial obligations, including a negotiated settlement with American Express pursuant to which she paid $6,600 to satisfy a $26,000 debt.   She is making principal payments on a monthly basis to satisfy the loans.

In short, while the plaintiff's station and standard of living have remained unchanged, the plaintiff's expenses have declined since she moved in with Pritchard.   It is clear that by cohabiting with Pritchard her financial needs have been altered in a positive way.

The plaintiff is currently employed as a paraprofessional in the Avon school system.   She earns approximately $15 an hour and works 6.5 hours a day for the one hundred and eighty day school year.   In 2008 she worked at Ameriprise as an event planner and earned approximately $50,000 per year.   During the marriage she stayed at home and raised the children.

At the time of the dissolution, the plaintiff's financial affidavit indicated she had the same position, but she reported gross weekly income of $400 and now reports only $313.   The discrepancy is unexplained as there was no testimony that her hourly wage has been reduced and she is currently working all of the one hundred and eighty days that constitute the school year.   In addition, she receives child support and alimony in accordance with the agreement.   The current alimony order, as set forth above, is $700 a week, but the defendant is not paying the full $700 a week to the plaintiff as he is offsetting from such alimony payments the amount he is paying on two student loans.²  Pursuant to the terms of the agreement, the plaintiff was to pay two student loans taken for Katelynn but she failed to do so for three months.   To avoid further damage to his credit rating and in the face of the plaintiff's refusal to pay the student loans, the defendant began to make the monthly payments in the total amount of $487.67 for both loans and to offset the same against his alimony obligation to the plaintiff.

The plaintiff has a bachelor's degree in organizational management and communications.   She was recently accepted into a program at the University of Hartford to pursue an advanced degree in event planning.   Tellingly, her acceptance into the program occurred after she filed the February 16, 2011 financial affidavit which affidavit included as a current liability an amount of $769 a week for the program which was denoted on the affidavit as Expenses for Party.

Based on all of the foregoing, the court finds the plaintiff to have additional earning capacity.

The defendant is an attorney employed at IBM. At the time of the dissolution and as of April 11, 20011 his weekly wage was $3,331.

David has moved in with the defendant and the plaintiff will not permit David to use her residence to attend the Avon school system and, accordingly, the defendant has recently moved to Avon to accommodate David's desire to continue his education in the Avon school system.   The move to Avon has increased the defendant's cost of living.   The defendant's costs for the children's extracurricular activities have also increased.

2. Applicable Law, Additional Findings of Facts and Analysis

The defendant seeks a reduction in the alimony he pays to the plaintiff as he alleges there has been a substantial change in circumstances since the dissolution in that the plaintiff is cohabiting pursuant to General Statutes § 46b–86(b).³

The court finds the first prong of General Statutes § 46b–86(b) to have been satisfied, i.e. the plaintiff is involved and living with Pritchard.   However, in order to obtain a modification of his alimony obligation, the defendant must further demonstrate the plaintiff's financial needs have changed by virtue of her living arrangements.   The change need not be substantial, but must be demonstrable in some way.   See Blum v. Blum, 109 Conn.App. 316, 324, cert. denied 289 Conn. 316 (2008).   See also D'Ascanio v. D'Ascanio, 237 Conn. 481, 487 (1996) (evidence sufficient when defendant's cohabitation resulted in contribution from cohabitant of $100 per week);  see also DiStefano v. DiStefano, 67 Conn.App. 628, 630 & n.2, (2002) (evidence not sufficient when cohabitant living in defendant's basement at no charge and storing possessions in basement).

The court finds Pritchard has contributed and continues to contribute monetarily to the plaintiff's household in such a way to change her financial needs.   Accordingly, the defendant has satisfied the second prong by General Statutes § 46b–86(b).

By the terms of the agreement, cohabitation does not lead, automatically, to the termination of alimony.   The agreement provides alimony is subject to the terms and conditions of General Statutes § 46b–86(b).  Accordingly, having found the plaintiff to be cohabiting and having further found the cohabitation has altered the plaintiff's financial needs the court may suspend, reduce or terminate the defendant's payment of periodic alimony to the plaintiff.   Grosso v. Grosso, 59 Conn.App. 628, cert. denied, 254 Conn. 938 (2000).

To determine if suspension, reduction or termination of periodic alimony is appropriate, the court is directed to the factors set forth in General Statute § 46b–82.  Gervais v. Gervais, 91 Conn.App. 840, 852–55 (2005).   In considering such factors, the court considers the plaintiff's additional earning capacity.  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007);  Eliah v. Eliah, 99 Conn.App. 829.

The plaintiff argues the alimony should not be altered due to the $40,000 safe harbor provided in Section 3.G. of the agreement.   The court does not agree.   The safe harbor provision permits either party to earn an additional $40,000 before alimony may be modified and is inapplicable to the instant motion.   The modification of alimony is not sought on the basis of the plaintiff increasing her earnings or wages, but rather due to the plaintiff living with another person in a living arrangement that has altered her financial needs.

After finding the defendant has satisfied the two prongs of General Statute § 46b–86(b) and the factors of General Statute § 46b–82, the court GRANTS the motion to modify alimony.   Alimony shall be payable by the defendant to the plaintiff as follows:  (i) Alimony is modified to $340 a week retroactive to the date of service of the motion to modify alimony of December 10, 2010, less the amount of $113.41 per week (which is equal to the $487.67 a month paid by the defendant for the student loans ($487.67 divided by 4.3) for a difference payable in the amount of $226.59 a week;  (ii) as of January 1, 2013 alimony shall be automatically reduced to $190 a week, less the $113.41 for a difference payable of $76.59 a week.   The defendant may only deduct the $113.41 per week from the alimony as long as he continues to pay the two student loans for Katelynn.   Alimony shall terminate on the sooner to occur of (x) the remarriage of the plaintiff;  (y) the death of either party;  or (z) December 31, 2016.   The alimony is otherwise non-modifiable as to term.   The provisions of Section 3.G of the agreement relating to the $40,000 safe harbor shall continue in full force and effect.   The alimony shall be deductible to the defendant and designated as income for the plaintiff.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. For the Record April 11, 2011, 90 Washington Street, Courtroom B–4, 11 a.m..  FN1. For the Record April 11, 2011, 90 Washington Street, Courtroom B–4, 11 a.m.

FN2. The court does not condone the self-help exercised by the defendant..  FN2. The court does not condone the self-help exercised by the defendant.

FN3. General Statutes § 46b–86(b) provides:  “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”.  FN3. General Statutes § 46b–86(b) provides:  “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

Olear, Leslie I., J.