Mark Friel v. Christine Friel (2011)

MEMORANDUM OF DECISION

The Plaintiff and Defendant were divorced on February 28, 2006.   Pursuant to the Separation Agreement approved by the court child support was delineated in Paragraph 3 as follows:

3. CHILD SUPPORT

The Plaintiff shall pay to the Defendant $471 per week as child support.   The Plaintiff shall pay 10% of the net of any bonuses he receives through work as additional child support.   The Plaintiff shall pay 75% of the orthodontic related expenses of the minor children and the Defendant shall pay 25% of said expenses.   Otherwise, with respect to unreimbursed medical expenses for the minor children the parties shall share said expenses pursuant to guidelines.   The parties will share the work related day care expenses of the minor children pursuant to guidelines.

The parties agree that they will share the extra-curricular expenses of the minor children equally;  they further agree that they will share the cost of driver's education and automobile insurance for the minor children equally and they will share the cost of college preparatory courses, SAT (and related required testing) courses and college application fees equally.

The Plaintiff shall provide the Defendant with proof of bonus funds received and a draft equal to 10% of said net amount within 10 days of receipt by him of said funds.

On November 20, 2008 pursuant to postjudgment motions the parties entered into a stipulation approved by the court that provided:

(7) The Father shall be solely responsible for the payment of the fees of the therapists (Pat Carl Stannud and David Meyers) for ten (10) sessions as set forth in this agreement.   The father's payment obligation extends to counseling for himself, the mother and the children.   Further counseling beyond the ten (10) sessions shall be by the agreement of the parties or recommendation of the therapist.

(8) All previous orders of the court not specifically modified herein shall remain in full force and effect.

The Plaintiff filed a Post–Judgment Motion to Modify Child Support (# 123.00) (as orally modified by counsel on May 16, 2011), Motion for Contempt (# 124).

On March 18, 2011 the Defendant filed a Post–Judgment Motion for Contempt Re:  Child Support (# 126, later withdrawn), Motion for Contempt Re:  Bonus (# 127), Motion for Order Re:  Medical Insurance (# 128) and Motion for Wage Execution (# 129).

Defendant's Motion for Order (# 122) was resolved by stipulation of the parties dated May 16, 2011.

The court heard the outstanding motions on May 6th, 9th and 16th, 2011 and makes the following findings of fact.

The Plaintiff testified that by mutual mistake he overpaid child support as ordered in the judgment.   He made payments of $2,474.65 every two weeks (or 26 times per year), when he should have made payments twice a month (or 24 times per year).   He testified his overpayment since the date of judgment totaled $17,955.00 (Plaintiff's Exhibit 1).

In February 2010 the couple's oldest child came to live with the plaintiff by agreement of the parties (but without a court order modifying custody or child support).   Mr. Friel unilaterally reduced one support payment to $1,831.00 due to the change in custody.   The Plaintiff's March 12, 2010 payment was increased to the customary amount of $2,474.65.   Thereafter, Plaintiff discovered the overpayment error and began paying $2,302.00 every two weeks until March 25, 2011.   In March 2011 the Plaintiff testified he became aware that the Child Support Guidelines used on the date of dissolution seriously underreported his tax liability.

The Plaintiff asks that any modification be retroactive to February 5, 2011 the date of service of the motion.   The court is granting this request after taking into consideration the year he had custody of the oldest child with no modification of support.

The court finds that there has been a substantial change of circumstances since the last child support orders were entered in that the parties have split custody of the two minor children at present.   The plaintiff's Motion to Modify Child Support is granted as follows:

The court finds the Child Support Guidelines submitted by the Defendant accurately depict the parties' earnings and relied on them in establishing the child support orders.   The plaintiff shall pay child support of $187 per week retroactive from 2/5/11 until the oldest child graduates from high school in June 2011.   Thereafter, child support shall be $289 per week until the first to occur the youngest child's graduation from high school or attaining the age of 19.

Mr. Friel entered into evidence bills for the children's therapy expenses beyond the 10 sessions he agreed to pay for in the November 20, 2008 stipulation.   It was the Plaintiff's contention that after the first 11 sessions the language of the original judgment should be applied with the Defendant being responsible for the amount prescribed by the Child Support Guidelines, in this case 54% (see Child Support Guidelines dated 2/28/06.)   The Defendant testified she did not agree to pay any portion of the therapy expenses.   The Plaintiff and Defendant did agree that the therapy was in the best interests of the eldest child.   Exhibit 9 is an e-mail from the Defendant dated 6/26/09 to Plaintiff advising him the child decided to continue in therapy.   Exhibit 10 is an e-mail thread between Plaintiff, Defendant and David Meyers regarding the child's continued therapy.   In Exhibit 10 Mr. Friel clearly states he is uncomfortable picking up the entire bill for the additional therapy.

The Plaintiff's Contempt Motion includes nonpayment of other medical expenses for the oldest child while in father's custody.   Mother originally did not have copies of the bills and insurance reimbursement statements and claimed this was the basis for her nonpayment.   However, even after being provided with the documentation she objected to paying the prescription bills for the child's birth control.   Evidence at trial demonstrated the child was on birth control (through Planned Parenthood) while she was living with mother.   Mother testified she was unaware of the child's use of birth control.   She argued that the reason for the custody switch was to remove the child from an inappropriate adult boyfriend.   The father testified when he discovered his daughter was prescribed birth control with no physical examination he took her to an OB/GYN for an exam, laboratory tests and a prescription.   It was clear to the court that the child engaged in sex while living with both parents and the cost of birth control is well below the cost of an unplanned pregnancy.   Since the proverbial cat was let out of the bag on mother's watch it would be unreasonable to expect father to enforce a rule mother was unable to enforce.

The Plaintiff's Motion for Contempt # 124 is granted and the court orders that Mother pay 54% of the oldest child's unreimbursed medical expenses, including birth control, therapy expenses (after the first 11 sessions) for a total of $2,296.90 within 60 days after the date of this order.

The Defendant testified the judgment required the Plaintiff to pay her 10% of his net bonus within ten days of receipt of the bonus.   The Plaintiff received a net bonus of $17,334.10 February 25, 2011 and under the judgment owed the Defendant $1,733.41.   The Plaintiff unilaterally reduced his payment to 5% of his net bonus because of the split custody arrangement in effect since February 2010.

The Separation Agreement is silent as to the definition of “net income.”   The Plaintiff argues that his 401K contribution should be deducted to get to “net bonus income” and the Defendant disagrees.   The Plaintiff did not consistently have 401K contributions deducted from his bonus check.   Since 2006 401K contributions were NOT made in 2007 and 2011.

The Child Support Guidelines Section 46b–215a—Definitions (17) defines “net income” as gross income minus allowable deductions.

Section 46b–215a–1. Definitions

As used in sections 46b–215a–1, 46b–215a–2b, 46b–215a–3, 46b–215a–4a and 46b–215a–5b:

(1) “Allowable deductions” means average weekly amounts subtracted from gross income to arrive at net income, and are limited to the following:

(A) federal, state and local income taxes, based upon all allowable exemptions, deductions and credits;

(B) social security taxes or, in lieu thereof, mandatory retirement plan deductions for an amount not to exceed the maximum amount permissible under social security;

(C) Medicare tax;

(D) medical, hospital, dental or health insurance premium payments, including Husky Plan contributions, for the parent and his or her legal dependents, provided the parent provides the name of the insurer and the policy number;

(E) court-ordered life insurance for the benefit of the child whose support is being determined;

(F) court-ordered disability insurance;

(G) mandatory union dues or fees, including initiation, to the extent deducted by the employer;

(H) the cost of mandatory uniforms and tools, to the extent deducted by the employer;

(I) court-ordered alimony and child support awards for individuals not involved in the support determination, provided a deduction for such awards shall be allowed only to the extent of payment on any non-arrearage amounts;  and

(J) an imputed support obligation for a qualified child, as determined in accordance with section 46b–215a–2b(e) of the Regulations of Connecticut State Agencies.

Connecticut courts have been clear that parties in domestic relations matters cannot resort to self-help and must follow court orders until modified, Culver v. Culver, 127 Conn.App. 236 (2011);  Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998);  Behrns v. Behrns, 80 Conn.App. 286, 289, 835 A.2d 68 (2003), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004).

Our Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order of the court must be obeyed until it has been modified or successfully challenged ․ Sablosky v. Sablosky, 258 Conn. 713, 719, 784 A.2d 890 (2001) ․” (Citations omitted;  internal quotation marks omitted.)  Riscica v. Riscica, 101 Conn.App. 199, 200–01, 921 A.2d 633 (2007).   Additionally, “[i]n 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 the court order.”  (Emphasis in original;  internal quotation marks omitted.)   Fuller v. Fuller, 119 Conn.App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010).

In Marcus v. Marcus, 175 Conn. 138, 394 A.2d 727 (1978) the court found:

“As the trier of fact the referee, sitting as a court, was entitled to credit the plaintiff's evidence and conclude that “income” as used in the escalator clause was intended by the draftsmen and the parties to mean what the defendant earned in the practice of his profession less the necessary expenses of earning it.   This accords with the dictionary definition of income, “a gain or recurrent benefit that is usu[ally] measured in money and for a given period of time”;  Webster, Third New International Dictionary;  and with the definition of “net income” followed by this court and the courts of other states.   Sturtevant v. Sturtevant, supra, 648;  annot., 79 A.L.R.2d 609.”

Additionally, the court in Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010), found “[t]he defendant's annual net cash bonus, however, is not another “available” financial resource under the first criteria because bonuses are included in the definition of net income.”   Emphasis added, id., § 46b–215a–1(11)(A)(iii) and (17).

Therefore, a 401K contribution is not an allowable deduction from gross income under the Child Support Guidelines.   Since 2006 the Plaintiff deducted a total of $6,821.03 in 401K contributions before computing the 10% of the bonus child support and owes the Defendant the sum of $682.10 plus $866.70 (5% of the 2011 bonus that was unpaid) for a total of $1,548.80.   The total amount shall be paid in full within 60 days of the date of this order.

The Plaintiff and Defendant each filed Motions for Contempt against each other.   The court finds both parties to be in willful contempt of court orders.   The Plaintiff unilaterally reduced child support and paid 5% of the bonus versus 10% as court ordered.   The Defendant refused to pay 54% of the oldest child's unreimbursed medical expenses.   The court is not awarding counsel fees to either party due to the mutual contempt.

By the Court,

Holly Abery–Wetstone, Presiding Judge

Abery–Wetstone, Holly, Judge