Shawn Tittle v. Susan Skipp–Tittle (2011)

MEMORANDUM OF DECISION

BACKGROUND

The parties were divorced on March 28, 2011, at which time both parties were represented by counsel.   The court accepted their 28–page separation agreement together with two parenting plan agreements and entered them as orders of the court.   The parties almost immediately thereafter plunged into disagreements and disputes.   Numerous motions were filed, resulting in a five-day hearing which ended on September 13, 2011.   A detailed transcript of the motions, issues, findings and orders is set forth in the file as document # 210.

MOTIONS AND ISSUES

After the hearing on September 13, 2011 defendant reclaimed some of her motions and both parties filed additional motions.   Another hearing on the outstanding motions was held on December 19, 2011, which is the subject of these orders.   Before that hearing commenced, the parties entered into a written stipulation as to what issues would be presented, as follows:

“1. Motion # 221 Guardian Ad Litem's motion for contempt postjudgment dated Nov. 3, 2011;

2.  Motion # 213 Plaintiff's post judgment motion for contempt dated Oct. 7, 2011;

3.  Motion # 228 Plaintiff's post judgment motion to modify dated Dec. 7, 2011;

In addition to the aforesaid, the court shall enter orders regarding the parenting schedule for the period from 12/19/2011 through 1/2/2012.

The parties also agreed that they would report back to court on March 27, 2012, the anticipated date for the completion of the Family Services Unit comprehensive custody evaluation.   The parties further stipulated as to what motions would be continued to a future hearing date (since scheduled for February 7 and 9, 2012).

FACTS

At the time of the dissolution, the parties shared joint legal custody of the children, whose primary residence was with defendant.   As a result of the extensive testimony and evidence presented at the post judgment hearing on September 13, 2011, the court ordered that plaintiff have sole legal custody and the parties have shared physical custody of their children.   These orders were intended to be temporary orders, as a comprehensive custody evaluation had been ordered with an initial report back date of December 21, 2011.   As such, those orders did not address the parental access schedule during the holiday vacation period.   The report back date was subsequently moved from December 21, 2011 to March 27, 2012, thereby necessitating further orders for this period of time.

The parties are unable to communicate on almost any level.   They use the services of the Guardian Ad Litem (GAL) for inordinate amounts of time on almost every issue involving the children.   The parties could not agree to a holiday access schedule for the two-week period commencing December 19, 2011.

The GAL presented the only viable plan for the holiday season, and that plan recognized the need to keep the interaction of the parties at a minimum.   Plaintiff accepted the GAL's plan but defendant did not.   Defendant did not offer any testimony or evidence as to why this plan would not be in the best interests of the children, nor did she offer an alternate plan.   The court adopted the recommendations of the GAL and entered them as orders of the court on December 19, 2011.

In their separation agreement the parties obligated themselves to equally divide any fees and costs due to the GAL. On March 29, 2011 defendant was ordered to pay her share of the GAL fees in payments of $1,000 per month.   Despite the fact that defendant earns over $60,000 gross per year from her employment as a teacher, and has received $1,803 per week in periodic alimony and $534 per week in child support, she has failed to make the court ordered payments to the GAL, resulting in a current arrearage of $3,750.   The GAL incurred further expense as a result of having to file her motion for contempt (# 221) and spend substantial time in court in the prosecution of this motion.

On September 13, 2011 the court found defendant to be in willful contempt of several court orders.   The court ordered, among other things, that defendant pay plaintiff attorneys fees in the amount of $12,000 at the rate of $1,000 per month commencing October 1, 2011.   Defendant was further ordered to pay a $2,000 fine to plaintiff by December 1, 2011.   Defendant has not complied with either of these orders.   As a result, she currently owes plaintiff the sum of $5,000.   Plaintiff incurred further expense as a result of having to file his motion for contempt (# 213) and spend substantial time in court in the prosecution of this motion.

The above referenced orders of the court were clear and unambiguous.   Defendant acknowledged her noncompliance with those orders, yet offered no credible reason or excuse for her noncompliance.   Defendant had the financial ability to pay these orders, but chose not to.   It is disturbing that defendant continued to receive alimony from plaintiff, but refused to pay her court ordered financial obligations to him.   She evidently has the same attitude toward her financial obligations to the GAL. The court hereby finds defendant in contempt for her willful violation of the court orders entered on September 13, 2011.

Understanding the particularly harsh findings of contempt and the resulting consequences, it is the better practice of courts to impose penalties in increasing stages so as to impress upon a contemnor the seriousness of these findings and the ultimate penalties.   On September 13, 2011 the court found defendant in contempt for her violations of its orders, some of which orders stemmed from her own agreements.   As a result, the court entered further orders on that date in order to effect its previous orders and to protect the best interests of the children.   Defendant is now found in contempt of the September 13, 2011 orders, the consequence of which will be reflected in these court orders.

The court will consider alternatives to defendant's direct payment of her court ordered financial obligations if she continues to not pay them.   Defendant is also put on notice that any further findings of contempt may result in her incarceration.

Prior to the dissolution of this marriage, defendant made extremely detestable statements regarding plaintiff to his professional colleagues, had posted such comments on the Internet, and had falsely represented herself as a patient of plaintiff when making some of these statements.   Defendant took the position that the court had no authority to restrict her free speech.   Ultimately the parties entered into an agreement on February 22, 2011 which, in relevant part, provides “Recognizing the negative impact derogatory remarks regarding the Plaintiff may have on his employment and/or career and the resulting affect on the children's best interest, the Defendant shall not make negative or derogatory remarks about the Plaintiff to any physician, physician's assistant, or administrator at Danbury Hospital.

Unfortunately, at least in large part due to defendant's actions, plaintiff was given the option of either resigning from his employment or being terminated.   He therefore resigned from his employment on June 3, 2011.   He received severance pay for 180 days, during which time he continued to make his court ordered payments of alimony and child support.

Plaintiff could not find employment in this area and did not want to move away from his children.   He elected to open his own office on June 30, 2011.   His weekly gross earnings dropped from $7,211.54 to $834.   The court finds this to be a substantial change in the circumstances of the parties.   Although plaintiff does expect his income to increase, he apparently does not have the present ability to make payments of alimony.

Defendant currently earns more through her employment than plaintiff.   Although the Child Support Guidelines (CSG) reflect weekly child support of $274 as the presumptive amount to be paid by defendant under the shared parenting orders, plaintiff has represented that he does not wish to have child support awarded to him at this time.   Based upon that representation, and other equitable factors in this case, the court will find that to strictly apply the CSG would be inequitable and inappropriate.

ORDERS

This court has specifically considered the relevant statutory provisions and case law affecting the issues in this case as well as the testimony and evidence presented by the parties.   The court enters the following orders:

1. The GAL's Motion for Contempt (# 221, dated November 3, 2011) is hereby granted.   Defendant is found to be in contempt for her willful failure to pay the GAL fees pursuant to the court orders of March 29, 2011.   In addition to the arrearage, now found to be $3,750, she is to pay a fine to the GAL in the amount of $1,000.   Defendant shall continue to pay her share of the GAL fees at the rate of $1,000 per month.   The method of payment of the $4,750 arrearage she currently owes to the GAL will be addressed at the February 7, 2012 hearing.

2. Plaintiff's Post Judgment Motion to Modify (# 228, dated December 7, 2011) is hereby granted.   Plaintiff's court ordered obligations to pay alimony and child support are temporarily suspended until further order of the court.

3. Plaintiff's Post Judgment Motion for Contempt (# 213, dated October 7, 2011) is hereby granted.   Defendant is found to be in contempt for her willful failure to pay court ordered attorneys fees and a fine, as set forth in the orders of September 13, 2011.   In addition to the amounts currently owed ($3,000 in attorneys fees and $2,000 in fines), she is to pay an additional $2,000 in attorneys fees and a further $1,000 fine to plaintiff.

Of course, financial orders previously entered were in consideration of the incomes of each of the parties.   As a direct result of the court order granting plaintiff his requested relief, and thereby reducing the amount of money being received by defendant (a total of $2,337 per week), the court cannot find that defendant has the present ability to pay plaintiff those amounts ordered.   Although the amounts owed shall continue to accrue, payments on those orders shall be temporarily suspended, pending further hearings and orders scheduled for February 7, 2012.

4. The court had found that the GAL's recommendations, as set forth in her proposed orders re:  Christmas vacation, were in the children's best interests.   The court did adopt those recommendations and entered those proposed orders as orders of the court on December 19, 2011.

5. The parties are to report to court on February 7 and 9, 2012 for a review and hearing on the alimony and child support orders, payments of the attorneys fees and fines, and the remaining outstanding issues.   Financial discovery requests are to be complied with by January 18, 2012 and updated financial affidavits are to be exchanged no later than January 25, 2012.   The parties are to present a written stipulation as to what issues have been resolved and what issues remain for the court's consideration.   The parties are also to provide written proposed orders as well as current child support guidelines.

6. The parties are already under an order to exchange their Federal income tax returns so long as they have any financial obligations to each other (paragraph 16.1 of their separation agreement).   In addition, defendant is ordered to immediately notify plaintiff's counsel and the GAL of any State or Federal income tax refunds she receives.   Defendant is ordered to not dispose of any portion of said refunds, but rather to hold same pending further court orders.

7. All orders not modified by these orders shall remain in full force and effect.

Resha, SJ

Resha, Robert T., S.J.