Nicholas Pagani v. Susan Tiso (2012)

MEMORANDUM OF DECISION

The defendant, Susan Tiso, filed a Motion for Contempt on October 27, 2011, alleging the plaintiff, Nicholas Pagani, violated court orders entered at the time of judgment on March 11, 2004.   Ms. Tiso first filed this motion, which was both improper in form and overly broad, as an unrepresented party.   Subsequently, the defendant obtained counsel and the issues in the motion were narrowed to two:  1) the plaintiff's failure to provide health insurance for their minor daughter, and 2) the plaintiff's failure to pay child support for periods in 2010 and 2011.   In addition, counsel for both parties filed Motions for Attorneys fees.   An evidentiary hearing was conducted on December 12, 2011, and continued on January 13, 2012.   After evaluating the credibility and testimony the parties;  reviewing the exhibits and relevant documents and applying applicable statutory and case law the court finds the following by a preponderance of the evidence.

On March 11, 2004, the parties entered into a stipulation pertaining to custody, visitation and support of their minor child, Johanna Pagani, dob:  March 10, 1997.   This agreement was approved by the court and judgment entered.   Relevant to this hearing the plaintiff father was ordered to pay child support in the amount of 171.00 per week.   In addition, the agreement mandated that the father “maintain health insurance for minor child and pay any deductible amount.”

Subsequent to the court order of 2004, the parties came to an informal agreement concerning the child's health insurance.   Ms. Tiso's insurance provided better coverage, so it was agreed that Johanna would be placed on her mom's policy.   In accordance with the judgment, Mr. Pagani was to pay to Ms. Tiso the portion of her premium ascribable to Johanna, which was $1,000.00 per year.   The plaintiff did pay the premiums for several months after Johanna's insurance was switched to her mom's policy;  however, he made no payment towards Johanna's health care after 2005.¹  Mr. Pagani understood that he was responsible for the payment of the premiums;  however, excused his non-payment by the defendant's failure to provide him with “bills.”

Ms. Tiso had communicated to Mr. Pagani concerning the need to pay the premium payments numerous times, both in person and by phone, but to no avail.   The plaintiff failed to make any payments towards the health care of Johanna, even after the defendant lost her job, and subsequently her benefits as of September 2011.   The defendant attempted to contact the plaintiff concerning this;  however, he had not accepted her calls or messages since Father's Day, 2011, following a disagreement with Ms. Tiso over parenting time.   The defendant is in the process of securing HUSKY for Johanna at this time.

In February of 2011, Ms. Tiso's car engine malfunctioned and was declared “totaled” by the insurance company which sent her a check for the value of the car.   She signed the check, in the amount of $2,730.83, (Plaintiff's Exhibit 3) over to Mr. Pagani, an antique car restorer and mechanic, which he accepted as payment for repairs needed to make the engine operable.   The automobile was returned to Ms. Tiso in late February 2011.   In late April 2011, Ms. Tiso's car engine again malfunctioned, and she returned it to Mr. Pagani for further repair.   The plaintiff told Ms. Tiso that he could not repair the engine and pay child support.   The car repair cost the plaintiff $1,146.00 in parts and $2,500.00 in labor, for a total of $3,646.00.   Mr. Pagani did not pay child support between June 1, 2011 and October 13, 2011, a total of 19 weeks, or $3,249.00.

As to the year 2010, the plaintiff submitted cancelled checks and bank deposits to demonstrate that he satisfied child support obligation for that year.  (Plaintiff's Exhibits 1, 2, and 4.) Based on the court ordered child support, Mr. Pagani is to pay $171.00 per week, or $8,892.00 per year.   The court tabulated the sum of the checks and deposits contained in Exhibits 1, 2 and 4 to be $9,093.00, which slightly exceeds his child support obligation for that year.

“To prevail on a motion for civil contempt, the movant must prove the existence of a court order and the noncompliance with that order.”   Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).  “The movant must establish these matters by a preponderance of the evidence.”   Id. “To constitute contempt a party's conduct must be willful.”  Gina M.G. v. William C., 77 Conn.App. 582, 590 (2003).  “The movant must also establish that the party disobeying the court order did so willfully.”   Keeney v. Buccino, 92 Conn.App. 496, 513 (2005).   Furthermore, “[a]n order of the court must be obeyed until it has been modified or successfully challenged.”   See:  Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985).  Jaconski v. AMF, Inc., 208 Conn. 230, 234–35, 543 A.2d 728 (1988).”

This court finds, by a preponderance of the evidence, that the orders entered in March of 2004, are clear, unambiguous, and valid.   As these orders were never modified by the court, the court finds that the plaintiff violated the order to provide health insurance for the minor child for the years 2006–2011.   These payments total $6,000.00.   There was no evidence that the plaintiff was unable to make these payments, and, in fact, the plaintiff stated he would have paid them if he received a “bill.”   The court finds that Ms. Tiso provided Mr. Pagani with sufficient notice concerning the cost of the health care premiums.   Accordingly, the court finds Mr. Pagani wilfully violated the court order as to insurance payments.

As to the non-payment of child support, the court credits Mr. Pagani's statement that Ms. Tiso had lost her job and had no money for the repair of her car in late April.   Accordingly, Ms. Tiso acquiesced, and allowed Mr. Pagani a credit in child support payments in exchange for repairing her car.   The court does not look favorably on “side agreements” between the parties, which are not sanctioned or enforceable by the court.   The court, however, finds it inequitable to hold the plaintiff in contempt for this non-payment of child support, when Ms. Tiso received an equivalent monetary benefit from the plaintiff in the form of the repair of her car.

The following orders are entered:

1) The court finds Mr. Pagani in contempt of the court order of March 11, 2004, mandating him to provide health insurance to his daughter.   His arrearage for the insurance payments is $6,000.00.

2) Mr. Pagani shall pay Ms. Tiso $6,000.00, no later than April 30, 2012.²

3) The parties SHALL not alter or modify the terms of the agreement entered into on March 11, 2004, without court order.

4) Mr. Pagani shall immediately assume the costs associated with Johanna's Husky insurance.   Ms. Tiso shall provide him written statements concerning these costs.   There is no order for the payment of unreimbursed medical expenses.   The court will not issue any such orders without a proper motion from a party.

5) Attorneys fees are denied as to both parties.

By the Court,

WOLVEN, J.

FOOTNOTES

FN1. Ms. Tiso credibly testified that Mr. Pagani paid premiums for portions of 2005, and then stopped payments altogether..  FN1. Ms. Tiso credibly testified that Mr. Pagani paid premiums for portions of 2005, and then stopped payments altogether.

FN2. Following the hearing the court requested and received copies of the parties' current financial affidavits.   Based on Mr. Pagani's affidavit the court finds that he is able to pay the health insurance arrearage in the time period ordered..  FN2. Following the hearing the court requested and received copies of the parties' current financial affidavits.   Based on Mr. Pagani's affidavit the court finds that he is able to pay the health insurance arrearage in the time period ordered.

Wolven, Carol A., J.