Paul H. Griffing v. Patrice J. Griffing (2011)

MEMORANDUM OF DECISION

This Memorandum is in reference to the two postjudgment motions filed by the parties, number 153.00 (Plaintiff's Motion to Modify) and number 154.00 (Defendant's Motion For Contempt).   The hearing upon these motions was concluded on May 30, 2011.

FACTS:

The parties were declared legally separated in October 2004, pursuant to a judgment which incorporated by reference the parties' “Stipulation For Judgment”, dated October 20, 2004 (hereinafter referred to as the “Judgment”).

1. Said “Judgment” provides, inter alia, that:

i. The husband would pay the wife unallocated alimony and support in the amount of $650.00 per week until June 25, 2012 (“Judgment”, paragraph 2);

ii. The parties shall share all unreimbursed medical, ․ orthodontic, ․ expenses incurred on behalf of the minor children in accordance with child support guidelines ․” (“Judgment”, paragraph 3);

iii. The husband shall maintain his existing life insurance policy naming the wife as custodian or trustee for the minor children ․ until they have turned 23 years of age, for as long as he has a support obligation to the wife.”   (“Judgment,” paragraph 4);

iv. For any amount of expense for the education of the parties' children for 2004–2005, and for subsequent years, the parties agree that the Court will retain jurisdiction over the issue of the parties' respective responsibility for payment of the private school expenses of any minor children ․ (“Judgment,” paragraph 5), and;

v. That the husband is responsible for the income taxes due for tax years 2001, 2002 and 2003 (“Judgment,, paragraph 8).

The parties have four children, the two youngest being Dakota and Dylan.   The husband has, since the time of the legal separation, been an independent contractor in the construction field.   The wife has been the school nurse at the Rumsey Hall School, a private middle school located in Washington, CT.

Child Support/Alimony

After reviewing the testimony, the exhibits, and the memorandums of law filed by both counsel, the court makes the following findings:

There has been a substantial change in the husband's financial situation since the time of the legal separation, however it is important to note that despite the plaintiff's testimony that his general contracting business has experienced a general decline over the past few years, he was able to make every weekly payment from the date of the legal separations up to and including the entire month of January 2011.   From February 2011 to May 2011, the plaintiff made sporadic, insufficient payments resulting in the plaintiff accruing an arrearage in the amount of $8,300.00.   In May of 2011, after the hearing commenced in the above-captioned matter, the plaintiff made all of the unallocated support and alimony for May. The fact that the plaintiff consistently made all the unallocated support and alimony payments for a substantial period of time gives the court sufficient reason to question the reliability and accuracy of the plaintiff's bookkeeping practices.   The plaintiff testified that he suffers from a learning disability, Dyslexia, which causes him great difficulty in processing his financial affairs therefore he relies solely on Miss Redmond, his girlfriend, to act as his bookkeeper.   During the hearing when the plaintiff's girlfriend was asked about her questionable methodology in preparing the plaintiff's business records, whether or not she utilized some standard accountant methods, her response was quite emphatic:  she was not an accountant.   Although the court makes no finding that the plaintiff and/or Miss Redmond acted fraudulently or dishonestly in the preparation of the plaintiff's financial records, the court finds that the methodology utilized by Miss Redmond created a rather confusing and unreliable financial profile.   It is also important to note that Miss Redmond is the plaintiff's girlfriend, she resides with the plaintiff, she and her father have made loans to the plaintiff thus giving them a financial interest in the outcome of the case.   Moreover, during the course of the hearing, there was no testimony that the plaintiff was experiencing any negative life style changes whereas the defendant was in the process of declaring bankruptcy.   In fact, the plaintiff testified that his business opportunities are improving.

In conclusion, although the court has found by the evidence presented at the hearing that there is a change in the plaintiff's financial situation, however, the court does not believe that the financial profile presented by the plaintiff is entirely accurate and the court declines to follow the proposed orders presented by plaintiff's counsel in determining what would be a fair resolution regarding the issue of child support and alimony.   Therefore, the court will order the following:

(1) The plaintiff is to pay the defendant the arrearage of $8,300 at the rate of $1000 per month commencing September 1, 2011 and monthly thereafter until the entire amount is paid;

(2) Effective June 1, 2011, the plaintiff shall pay the defendant the amount of $400 per week for unallocated alimony and support in accordance with the provisions as set forth in the legal separation;

Private School costs

The parties have four children, all of whom, at various times, attended private school.   The judgment” provided for payment of private school expenses from the husband's father's trust fund.   The husband was permitted to borrow against whole life insurance policies which he had at the time of the legal separation, to pay for costs.   See “Judgment,, paragraph 5. The parties' two youngest children, both boys, like their older sisters before them, attended a private educational institution, the Rumsey Hall School.   The wife, who has been employed by the school, has had her pay garnished by the school in order to pay for Dakota and Dylan's tuition.   The wife's pay has been garnished a total of $2,800 for year ending 2007;  $4,000.00 for year ending 2008;  $4,600.00 for year ending 2009;  $1,600.00 for year ending 2010, and;  $600.00 through year to date, 2011, for a total of $13,600.00.

With regard to this issue the court finds that although the defendant possessed a noble goal in desiring her children attend a quality private school, there was testimony presented at the hearing that the financial resources to accomplish this goal were no longer present.   Neither party utilized the provisions of the Judgment which would have given the court jurisdiction to settle any disputes regarding the educational support of the children.   Despite the fact that the husband's trust fund, which provided for the children's education, had been depleted and that the husband had cashed in a life insurance policy to pay for additional education expenses, the defendant, who was struggling financially, continued to enroll the children at Rumsey Hall. Although the record suggests that the plaintiff was most likely aware of the fact that his children were continuing to be enrolled in a private school and that he did not object to the expenses attendant to said education, the court finds that defendant was the driving force behind this unnecessary expense.   The defendant should have exercised better judgment with regard to the private schooling of the children and mitigated the cost of said education by exploring less expensive alternatives.   Therefore, the court will order that the plaintiff to pay the amount of $5,000 to the defendant for the tuition payments made by the defendant to Rumsey Hall. Said payment shall be made within 18 months of the issuance of this decision.

Life Insurance

At the time of the legal separation, the husband had two policies of whole life insurance, each with cash/surrender value, and each with a stated death benefit.   The husband, at such time as the parties' older children were in college, liquidated his life insurance policies to pay for some of the college costs.   The husband testified that he believed such was permitted by the “Judgment,, and that he had not sought the advice of counsel before he liquidated the policies.   The “Stipulation” provides that the husband may “borrow” against the policies in order to pay for costs, but does not provide that the husband could liquidate the policies, thus canceling the same.   The husband claims to have procured a new life insurance policy, but the death benefit is less than what he had in effect at the time of the legal separation.

With regard to this issue, the court does not accept the plaintiff's excuse that his Dyslexia prevented him from understanding the terms of the Judgment as they relate to terms of the life insurance policy.   The plaintiff had no right to cash in the policies and although the court will not hold him in contempt for his actions because the money was used for the education of his child, the court will order that he obtain and maintain life insurance policies that are of the same value and consistent with the terms as stated in the judgment, i.e. all policies shall include the trust provisions and the named beneficiaries pursuant to the Judgment.   Compliance shall be completed within 30 days of the issuance of this decision.

Orthodontic Expenses

The husband shall pay to the wife $750.00 for orthodontic work of the youngest child Dylan.   Payment shall be made within 30 days of the issuance of this decision.

Attorneys Fees

Both parties are responsible for their Attorneys fees.

BY THE COURT

Ginocchio, J.

Ginocchio, James P., J.