Debojit Paul v. Poornima Paul (2012)

Ruling Re Plaintiff's Motion for Contempt, Postjudgment

Factual Background:

The marriage of the parties was dissolved by the court on January 21, 2010.   A Separation Agreement entered into by the parties was incorporated into the Judgment by reference.   Article V of the Agreement provides in relevant part:  “Upon sale of the marital home or January 31, 2010, whichever first occurs, the Plaintiff–Husband shall transfer to the Defendant–Wife his fifty percent (50%) interest in Maxtouch Wireless, LLC ․ The Defendant–Wife shall facilitate the transfer of any and all guaranties presently in the Plaintiff–Husband's name.   All personal guaranties shall be replaced by the Defendant–Wife and withdrawn by Plaintiff–Husband prior to the transfer of his interest in Maxtouch Wireless, LLC. Plaintiff Wife shall hold husband harmless on all business debts.”

On June 25, 2010, the Plaintiff moved the court to find the Defendant non-compliant with Article V of the Agreement by.   He alleged she neglected and refused to pay the Bank of America Visa business card account in the name of Maxtouch Wireless, LLC on which he was a guarantor.   He moved the court for a finding of contempt, an order that she pay him damages, and an award of counsel fees.

The parties entered into an Agreement on September 20, 2010, regarding the Motion for Contempt.   The Agreement was approved, accepted and made an order of the court.   The Defendant was ordered, pursuant to paragraph 2 of the Agreement, to pay off the Bank of America Visa Maxtouch Wireless account or to remove the Plaintiff from the account within fifteen (15) days and provide him with proof that he'd been removed.   It further provided that the Husband shall be entitled to reimbursement for any payments that he might make on the account during the time the Wife's obliged to make the payments.

On November 18, 2010, the Plaintiff filed for an order that the Defendant pay his attorneys fees for having violated the court orders of January 21, 2010.   He filed a Motion for Order on May 24, 2011, requesting, inter alia, that the orders entered September 20, 2010, be set aside in part to address his claim for the attorneys fees necessitated by the Defendant's alleged non-compliance with the court orders of January 21, 2010.   The Defendant filed no objection to either the motion of November 18, 2010 or the motion of May 24, 2011.

On July 11, 2011, the court ordered a hearing on the motions for November 29, 2011.   The hearing was subsequently continued to January 19, 2012.   Both parties appeared with counsel on January 19, 2012 and were duly heard.

Discussion:

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense ․ Nonetheless, [n]oncompliance alone will not support a judgment of contempt ․ [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.”  (Citations omitted;  internal quotation marks omitted.)  Kennedy v. Kennedy, 114 Conn.App. 143, 148, 968 A.2d 1002, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009).

Findings:

After hearing and a careful review of the credible and relevant evidence offered during the hearing, and a review of the judicially noticed court records, the court finds the following:

Pursuant to Article V of the Separation Agreement the Defendant was obligated to assume liability for the Maxtouch Wireless account and to hold the Plaintiff harmless on all business debts.   The Bank of America Visa business card account is a business debt.   The Defendant was obligated to assume liability and to hold the Plaintiff harmless thereon.   Statements for the remittance of monthly payment to Bank of America Visa for the Maxtouch Wireless business account were issued by Bank of America Visa to the address of the business co-owned and operated by the Defendant.   The Defendant attempted to negotiate a new payment arrangement of $100 per month with Bank of America Visa. It refused to discuss the account with her because she was not on the account.   The Defendant failed and neglected to request a release or other written authorization from the Plaintiff to speak with Bank of America Visa to negotiate a new payment arrangement.   The Defendant made a payment of $100 to Bank of America Visa in August 2010.   The check was not honored by Bank of America Visa. In September 2010 she made a payment of $200 to Bank of America Visa which was accepted.   Since then she has remitted $100 per month on the account.   The remittance of $100 per month is less than the minimum monthly payment required by Bank of America Visa. The Defendant failed to pay the Bank of America Visa business card account in the name of Maxtouch Wireless, LLC, on which the Plaintiff is a guarantor, as was ordered by the court.

Due to the Defendant's failure to make the payments as ordered, the Plaintiff has had to pay since January 21, 2010, $3,095 to Bank of America Visa for the Maxtouch Wireless account.   The Plaintiff presented the Defendant with proof of the payments that he has made and made demand upon her to reimburse him for the payments he has had to make.   The Defendant failed and neglected to reimburse the Plaintiff for the payments that he has made on the account during the time that she has been obliged to make the payments.

The Defendant has failed or neglected to pay off the Bank of America Visa Maxtouch Wireless account as was ordered by the court on September 20, 2010.   She has failed and neglected to provide the Plaintiff with proof that he has been removed from the Bank of America Visa Maxtouch Wireless account, as was ordered by the court on September 20, 2010.   She failed and neglected to remove the Plaintiff from the Bank of America Visa Maxtouch Wireless account within fifteen (15) days of September 20, 2010, as was ordered by the court.

On September 20, 2010, the Defendant had a net weekly income of approximately $830.   Her net weekly income has not significantly changed since September 20, 2010.   On September 20, 2010, the Defendant was intending to pay the Bank of America Visa Maxtouch Wireless account with funds she planned to borrow.   Subsequent to September 20, 2010, she did in fact borrow approximately $26,000.   She elected to utilize the borrowed funds to pay her educational expenses and not to pay the Bank of America Visa Maxtouch Wireless account as she had planned.   The court concludes that she had the ability to comply with its orders but chose to not comply with Article V of the Separation Agreement and subsequent orders of this court.   She is in willful violation of the court's orders.

There remains an outstanding balance of $3,805.89 due Bank of America Visa on the Maxtouch Wireless account.   The Plaintiff incurred attorney fees of $3,881.25, prior to the hearing on January 19, 2012, due to the Defendant's non-compliance with the court's orders.   The court finds the attorneys fees charged prior to January 19, 2012 to be reasonable.  “General Statutes § 46b–87 provides that the court may award attorneys fees to the prevailing party in a contempt proceeding.   The award of attorneys fees in contempt proceedings is within the discretion of the court.”  (Internal quotation marks omitted.)   Celini v. Celini, 115 Conn.App. 371, 383, 973 A.2d 664 (2009).

The Plaintiff has requested $3,881.25 in attorneys fees.   The court finds such amount to be fair and reasonable.   The Plaintiff is awarded $3,881.25 for attorneys fees incurred prior to the hearing on January 19, 2012.   He is awarded an additional $550 for attorney fees incurred during the hearing on January 19, 2012.   The additional fees are awarded in connection with the financial issues only on the Plaintiff's Motion for Contempt, for a total award of attorney fees of $4,431.25.

Orders:

The Defendant is hereby ordered to:

1. Pay to the Plaintiff's attorney by February 15, 2012, the sum of $3,805 for remittance to the Bank of America Visa to pay on the Maxtouch Wireless, LLC, business account;

2. Pay to the Plaintiff's attorney the sum of $150 per month, commencing May 15, 2012, as attorneys fees awarded to the Plaintiff until the total of $4,431.25 has been paid in full;  and

3. The Defendant is ordered to reimburse the Plaintiff the sum of $3,095 as reimbursement to the Plaintiff for the payments he made to the Bank of America Visa for the Maxtouch Wireless account in installments of $100 per month, commencing May 15, 2012, until the total of $3,095 has been paid in full.

By the Court

Turner, J.

Judge of the Superior Court

Turner, John, J.