Thomas Cox v. Susan Cox (2012)

MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT DATED SEPTEMBER 21, 2009 (# 174.00)

This is the third of three postjudgment motions heard by the court at the same evidentiary hearing.   The court has heard and granted the Plaintiff's Postjudgment Motion for Modification of Alimony (# 171.00) and the Amended Postjudgment Motion for Modification of Alimony (# 185.00) and denied the Plaintiff's Motion to Modify Life Insurance Obligation Postjudgment (# 189.00).

The parties' marriage was dissolved on November 5, 1999 and their November 5, 1999 Separation Agreement was incorporated in the decree.   The plaintiff was ordered to pay during his lifetime to the plaintiff during her lifetime or until her remarriage or cohabitation the sum of $6,270 per month as periodic alimony, payable $3,135 on the 1st day of each month and $3,135 on the 17th day of each month. (# 147.00, Article II, paragraph 2.1a.) This order has not been modified until the most recent motion was filed and an alimony modification order entered of even date herewith.   Plaintiff's alimony modification motions claimed the following changes of circumstances:  health deterioration, reduction of income and retirement.   In addition the Separation Agreement Article XI, paragraph 11.6 states:  “The parties agree that upon the HUSBAND'S retirement, or any time after he attains the age of 65, whichever event shall first occur, the HUSBAND may request that the court take a ‘second look’ at his alimony obligation as follows.”   The defendant retired on November 30, 2009 from his lifetime career as an insurance agent/financial representative from Northwestern Mutual Life Insurance Company.   He attained the age of 65 on July 11, 2010.

After a number of days of evidentiary hearings the court issued a Memorandum of Decision of even date herewith finding that his current net weekly income is $1,357.17 reducing the alimony obligation from $6,270 per month to $2,500 per month.   The order to modify the alimony was retroactive to December 1, 2009 in accordance with the Stipulation (# 176.00).

In between those two motions to modify, the defendant hired counsel and filed this current Motion for Contempt.   The contempt motion sought attorney fees and other sanctions.   During the hearing the parties stipulated that the plaintiff has failed to pay the entire $6,270 per month despite the fact that wage garnishments have been issued by the court.   The parties further stipulated as to the arrears based upon the $6,270 payment due each month.

After the November 5, 1999 decree the defendant had to file a number of motions for contempt to collect alimony arrears. # 150.00 December 17, 1999;  # 152.00 February 24, 2000;  # 153.00 March 3, 2000;  and # 160.00 May 17, 2001.   The court issued a written Memorandum of Decision on September 24, 2001 concerning this last motion for contempt and found:  “After a hearing and two monitoring follow up dates the plaintiff paid the arreage.   The court allows the defendant the sum of $5,000 as an allowance to prosecute this motion together with $4,620 service costs advanced.” (# 168.00.) On July 30, 2001 the court ordered that an “immediate wage execution be imposed.” (# 165.00.) For many years prior to the 1999 decree and throughout the entire postjudgment period the plaintiff has been employed as a life insurance agent/financial representative by Northwestern Mutual Life Insurance Company.   This wage garnishment has remained in effect since July 30, 2001.   All alimony payments made by the plaintiff since July 30, 2001 have been made by the Northwestern Mutual Life Insurance Company wage garnishment.   These wage garnishment records recording the date and amount of each garnished amount commencing from January 1, 2009 were in evidence.   Ex. 3, 1/15/09 through 12/31/09;  Ex. 4, May 14, 2010 through 12/31/10;  Ex. 5, 1/14/11 through 4/19/11;  Ex. 17, 1/14/11 through 8/1/11.   Throughout this entire time the periodic alimony order remained at $6,270:  payable twice a month at $3,135.

On August 12, 2011 the parties orally stipulated on the record that the total alimony arrears through and including July 31, 2001 is $104,690.   This alimony arreage was based on the $6,270 monthly order.   It did not take into account the retroactive Stipulation effective on December 1, 2009.   It did not assume any periodic alimony payment other than the $6,270.   The parties did dispute whether or not the defendant received the sum of $2,893.24 on October 30, 2009.   She testified that she did not receive the $2,893.24.   The wage garnishment records in evidence show that $2,893.24 October 30, 2009 payment to the defendant.   Ex. 3. The bank records in evidence show that $2,893.24 payment as having been made.   Ex. 6. The plaintiff therefore is entitled to an additional credit of $2,893.24 reducing the orally stipulated alimony arrears from $104,690 to $101,796.76.

The court has carefully reviewed the documents provided in evidence.   It noted a math error in open court that was later corrected.   Ex. 9 totaled the four 2011 payments to Thomas Cox as $3,267.08.   The corrected exhibit totaled the same four 2011 payments to Thomas Cox as $4,300.84.   Ex. 11.   The court is not satisfied that the August 12, 2011 Stipulation can be confirmed by each of the garnishment exhibits.   Ex. 3, 4, 5 and 17.   There may be need for further examination of the documents, another stipulation, submission of affidavits, or even a court hearing.

The calculation of the alimony arrears needs to be adjusted downward due to the December 1, 2009 retroactivity order (# 176.00).   The arrears for the first eleven months of 2009 will be calculated at the rate of $6,270 per month and from and after December 1, 2009 the arrears will be calculated at the rate of $2,500 per month.   This is so even though the $6,270 monthly garnishment was in effect from and after December 1, 2009.   For the first eleven months of 2009 the plaintiff was to pay $68,970 alimony ($6,270 x 11 = $68,970).   According to Exhibit 3 he paid $66,234.43 for the entire year of 2009 in the form of wage garnishments.   This $66,234.43 gives the plaintiff the $2,893.24 credit for the disputed October 30, 2009 payment.   The last two garnishments in Ex. 3 occurred in the month of December 2009 and thus are calculated against the modified $2,500 monthly alimony order.   These two garnishments were December 7, 2009 $1,953.24 and December 31, 2009 $3,135.00.   That reduces the alimony garnishments made during the first eleven months of 2009 to $61,146.19 ($66,234.43—$3,135.00—$1,953.24 = $61,146.19).   The court finds that the plaintiff is in arrears for the first eleven months of 2009 in the amount of $7,823.81 ($68,970—$61,146.19 = $7,823.81).   The plaintiff then owes $2,500 alimony for the month of December 2009.   The two December 2009 garnishments of $1,953.24 and $3,135.00 must be applied to that payment resulting in an overpayment and a credit to the plaintiff of $2,588.24 ($1,953.24 + $3,135.00 = $5,088.24 -$2,500 = $2,588.24).   Thus for all of 2009 the plaintiff is in arrears in his old alimony payment and his recently modified payment retroactive to December 1, 2009 in the amount of $5,235.57 ($7,823.81—$2,588.24 = $5,235.57).

The August 12, 2011 oral stipulation states that the 2009 arrears are $11,892.20 without consideration of the disputed $2,893.24 October 30, 2009 credit.   The court has independently added all the figures in Ex. 3 and agrees with its stated total of $66,234.43.   The parties should be given the opportunity to conduct their own mathematical calculation.

According to the August 12, 2011 oral stipulation the plaintiff was in arrears in the amount of $53,180.65 for 2010.   This was based on twelve payments of $6,270 for total alimony due in 2010 of $75,240.   Exhibit 4 notes the 2010 garnishments paid to the defendant in the amount of $22,059.35.   Counsel used these figures to formulate the August 12, 2011 oral stipulation for the 2010 arrears. ($75,240—$22,059.35 = $53,180.65).

The court has added all the numbers for 2010 in Exhibit 4. The court's addition totals $22,059.35, the same total found in Exhibit 4. Again the parties should have the opportunity to conduct their own mathematical calculations.

Although the parties stipulated to the 2010 arrears as being $53,180.65 that was based on the $6,270 monthly alimony order then in effect.   The plaintiff should have paid $30,000 for all of 2010 under the modified alimony order retroactive to December 1, 2009.   The court finds that the plaintiff is in arrears in alimony 2010 in the amount of $7,940.65 ($30,000—$22,059.35 = $7,940.65).

According to the August 12, 2011 oral stipulation the plaintiff is in arrears for 2001 through July 31, 2011 in the amount of $39,616.65.   This was based on seven payments of $6,270 for total alimony due for the first seven months of 2011 of $43,890.   This stipulation would therefore have credited the plaintiff for $4,273.35 in garnished funds for that seven-month period.   Neither of the two exhibits support the $4,273.25.   Exhibit 5 calculates the garnishments from January 14, 2011 through and including April 29, 2011 as $2,503.31.   Exhibit 17 calculates the garnishments from January 14, 2011 through and including August 1, 2011 as $7,408.35.   The court has added the sums set forth in Exhibits 3 and 17 and agrees that the mathematical calculations total the figures of $2,503.31 and $7,408.35.   The court cannot accept the August 12, 2011 stipulation as to the 2011 arrears.

The court will use the $7,408.35 total payments made by garnishment in 2011 for the calculation of the arrearage due for the first seven months of 2011 based on the court's $2,500 modified alimony order effective December 1, 2009.   Ex. 17.   From January 1, 2011 until July 31, 2011 the plaintiff was required to pay periodic alimony of $17,500 ($2,500 x 7 months = $17,500).   According to Exhibit 17 he paid by way of garnishment the sum of $7,408.35.   As of August 1, 2011 the court finds that the plaintiff is in arrears in the $2,500 monthly modified alimony order of $10,091.65 ($17,500—$7,408.35 = $10,091.65).

Therefore the plaintiff's alimony arrearage based on the $2,500 monthly alimony order modified as of December 1, 2009 is:

$ 7,823.81 first eleven months of 2009

— 2,588.24 credit for December 2009 overpayment

5,235.57 2009 alimony arrears

7,940.65 2010 alimony arrears

10,091.65 2011 alimony arrears through July 31, 2011

$23,267.87 Total alimony arrears through July 31, 2011

The court has no evidence of the amount of the garnishment payments made to the defendant after the August 1, 2011 payment of $1,251.15.   Ex. 17.   The August 1, 2011 garnishment payment of $1,251.15 has been credited to the plaintiff in determining the alimony arrears through July 31, 2011.

The mere nonpayment of a court order is insufficient by itself for a court to find contempt.  “A finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.”  Sabloski v. Sabloski, 258 Conn. 713, 718 (2001);  Przckopski v. Zoning Board of Appeals, 131 Conn.App. 178, 191 (2011);  Kennedy v. Kennedy, 114 Conn.App. 143, 148 (2009).   The inability to make the payment is sufficient to defeat a finding of contempt.  “The burden to prove financial incapacity in such instances rests with the contemnor.”  Creatura v. Creatura, 122 Conn.App. 47, 59 (2010).   The plaintiff claims that because of his retirement, deterioration of his health and the substantial reduction in his income he was unable to make the payments of $6,270.   The court finds the plaintiff credible.   His alimony was under garnishment.   He was engaged full time in his career employment with the same employer.   There was no evidence of underemployment.   The plaintiff has proven his loss of earnings.   The court cannot find that his conduct in not making the payments was wilful.   The court therefore will not find the plaintiff in contempt.

The defendant is claiming attorneys fees.  Gen.Stat. § 46b–87 permit the award of an attorneys fees based upon the finding of contempt.   Since the court has not found the plaintiff in contempt, the court has no legal authority to award attorneys fees to the defendant based on Gen.Stat. § 46b–87.   Pursuant to Gen.Stat. § 46b–62, where there was a breach of a court order, but no finding of contempt, it is within the discretion of the court to award reasonable attorneys fees, so long as a party against whom they are assessed is given an opportunity to challenge the reasonableness of the fees.  “We conclude, therefore, that the trial court had the authority, under § 46b–62 to award attorneys fees to the plaintiff without first finding the defendant in contempt.”  Dobozy v. Dobozy, 241 Conn. 490, 499–500 (1997);  Sardilli v. Sardilli, 16 Conn.App. 114, 120 (1998).   Although this court cannot award attorney fees under Gen.Stat. § 46b–87 because there was no finding of contempt, the alternate authority permits an award of attorney fees in the contempt motion applying the standards of Gen.Stat. § 46b–62.   This requires the review of each parties' current financial circumstances.

The defendant has the obligation to prove the amount of attorneys fees by setting forth a statement that contains in effect contemporaneous time records.   In this case the defendant has offered an August 10, 2011 affidavit of attorneys fees. (# 190.00.) The defendant was represented by Attorney Charles Busek throughout this entire postjudgment proceedings.   Mr. Busek was present in court and offered himself as a witness in the event that the plaintiff wished to examine him.   The plaintiff chose not to examine him.   The affidavit of attorneys fees states that his hourly rate is $400.   It indicates that his total fees through August 10, 2011 based upon contemporaneous time records were $27,110 plus disbursements of $1,100.30.   The defendant had paid $5,000 leaving the balance due.   The court has reviewed the time records.   It finds that the hourly rate is reasonable.   Mr. Busek has satisfied the requirements of Smith v. Snyder, 247 Conn. 480, 485 (2001).

Attorney Busek's affidavit fails to break down the fees between the three motions.   The requirement of allocation of an attorney fees claim is supported by trial court decisions.   Cadle Co. v. D'Addario, Superior Court, judicial district of Stamford/Norwalk at Stamford, Complex Civil Litigation Docket Number X05 CV 02–4009795 S (March 1, 2010, Blawie, J.);   Lupa v. Garassino, Superior Court, judicial district of Litchfield at Litchfield, Docket Number LLI CV 08–5003769 S (June 5, 2009, Roche, J.);   Hamilton Sundstrand v. Sino Swearingen Aircraft Company, Superior Court, judicial district of Waterbury at Waterbury, Complex Civil Litigation Docket Number X06 CV 00–0171563 S (August 15, 2003, McWeeny, J.);   Angle v. Angle, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST FA 04–4000812 S (November 12, 2005, Tierney, J.) [40 Conn. L. Rptr. 277].

The court, in proceeding under Gen.Stat. § 46b–62, is required to analyze the financial circumstances of the parties.   In the event that the defendant was successful in obtaining an order of contempt and sought attorney fees under Gen.Stat. § 46b–87, the parties' financial circumstances would not be a consideration.   The court has found that the plaintiff has minimal assets and his liabilities exceed his assets.   His income has been substantially reduced.   The court recognizes that the defendant's financial condition demonstrates that she has inadequate income to pay her expenses even with the additional periodic alimony.   She has inadequate assets with which to pay the attorneys fees.   Despite the hardship that this imposes on Attorney Busek and the defendant, the court reluctantly must deny the application for attorneys fees.

ORDER

The court finds that the plaintiff is not in contempt of the November 5, 1999 alimony order, as modified by this court of even date herewith.

The court denies the defendant's request for relief of attorney fees.

The court finds that the alimony arrears from the November 5, 1999 order and January 6, 2011 modification order through and including July 31, 2011 is $23,267.87.

The court has no evidence of any payments made by the plaintiff after August 1, 2011, the August 1, 2011 garnishment payment of $1,251.15 having been credited to the plaintiff in the above order.

Either party may file an appropriate motion including but not limited to a Motion to Reargue, if there is a disagreement with the mathematical calculations of the arrears contained in this Memorandum of Decision.

Unless one of the parties filed the appropriate motion, the court will make no findings regarding any alimony arrears after August 1, 2011.

Since both parties are represented by counsel, the court will permit any motion filed pursuant to this court order to be served by mail in accordance with the Practice Book. The requirements of service in accordance with Gen.Stat. § 52–50 are dispensed with for any motions contemplated by this court order.

The court will retain continuing jurisdiction over any issue regarding the alimony arrears.

The court orders that the plaintiff pay to the defendant the sum of $1,000 per month on the $23,267.87 alimony arrears payable $1,000 on the first day of each calendar month with the first payment to be made on March 1, 2012.

This $1,000 alimony arrears order is not subject to the current garnishment order.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.