Carol Ann Dodge v. Robert Dodge (2011)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT DATED FEBRUARY 25, 2010 AND AMENDED MARCH 31, 2011

The plaintiff brought a motion for contempt based on the claim that the defendant failed to pay an order for child support in the amount of $150.00 per week that the court entered at the time of the dissolution on September 24, 1998.

On September 24, 1998, the plaintiff and defendant were divorced on the uncontested docket.   Their agreement was incorporated by reference as orders of the court.   The parties had agreed to shared parenting arrangements with each being “responsible for the children approximately fifty (50%) of the time each week.”

The dissolution agreement makes reference to the following provisions regarding support of the minor children:

3. SUPPORT OF THE MINOR CHILDREN

A.  It is intended that each parent will be equally responsible for one half of the minor children's expenses, including but not limited to:  day care, medical insurance, extra-curricular activities, camps, lessons, clothing, haircuts, celebrations, etc.   Each parent will be individually responsible for the shelter, food and basic housing expenses of the children when in their respective care.

B. The Husband shall pay the Wife the sum of $150.00 per week to cover his one half share of the majority of said expenses.   Wife will pay all of day care and activity fees directly.   In the event the children's expenses fluctuate significantly, the parties will reassess the amount of Husband's contribution.

C. The parties are required to consult and agree with each other before incurring any other expenses on behalf of the children for which they will be seeking fifty percent reimbursement in addition to the above.

D. The parties shall share the Federal/State Tax Exemptions for the minor children.   Wife will claim Rebecca each year and Husband will claim Jonathan each year.   When Rebecca is no longer a minor, the parties will alternate claiming Jonathan (Wife to claim on first available year).   The designation of said exemptions is modifiable by the Court.

The court finds the following facts from the testimony of the parties.   The plaintiff filed a motion for contempt on February 25, 2002, claiming that the defendant failed to pay the $150.00 per week in child support.   That motion was never pursued.   It was not disputed that the defendant reduced the amount of payment for expenses to $76.40 when the children were no longer in day care and the difference related to the amount of expenses left when day care was no longer utilized.   Further, it was not disputed that the defendant reduced by half the amount of support when his daughter reached majority and graduated from high school.

The provision in contention deals with extra expenses related to the minor child and it provided that the expenses could fluctuate up or down and the parties could reassess the amount of the defendant's contribution.   The parties did in fact utilize the service of the Peace Program which advised them to resolve the matter themselves or to retain legal counsel to pursue the matter in court.   The plaintiff subsequently dropped her contempt motion.   The defendant reduced payments with regard to reduced expenses and the plaintiff did not dispute that day care had ended and the older child had reached majority.

For nine years the plaintiff did not make a claim against the defendant.   The premise of the plaintiff's claim is that the defendant should have moved to modify the order to avoid the accumulation of arrearage.   The agreement and order provides otherwise.   It contemplated that there would be changes in expenses up or down and the parties would deal with that without a court order.   Shelter, food and living expenses were to be dealt with separately.

Aside from the plaintiff's original complaint in 2002 regarding the reduction of the defendant's support, which complaint was subsequently abandoned, the plaintiff never claimed, until nine years had passed, that she disagreed with the plaintiff's reduction in support, and she also did not offer any claim that there were additional expenses added after the day care was discontinued.

The court does not find the defendant in contempt of the court's order of September 24, 1998.   The defendant claims that he sent checks to the plaintiff totaling $3,366 that were never cashed and that he owed her $1,491.75 for a number of weeks when he did not pay child support because he was denied visitation in violation of the parenting plan.   The defendant stated that those two amounts owed, totaling $4,857.75 would be paid by June 1, 2011.   The court will accept the defendant's testimony and requests the parties to provide written confirmation to the court that the defendant has paid this obligation by June 1, 2011.

There was a claim by the plaintiff that the defendant did not pay medical bills as required by section 5B of the dissolution agreement.   The defendant claims that he did not receive notice of the medical needs as is required by the agreement.   The court declines to address this issue since it was not specified in the plaintiff's complaint, other than to suggest that these medical bills be paid and that both parties comply with section 5B of the dissolution agreement regarding consultation.

SO ORDERED.

BY THE COURT,

Barall, JTR

Barall, Herbert, J.T.R.