Laurie A. LaPorta v. Mario J. LaPorta (2012)

MEMORANDUM OF DECISION

The parties returned on February 17, 2012 to argue the defendant's motion to reopen (# 180.50) and the plaintiff's motion for contempt (# 181).   The court took evidence from both parties and finds as follows:

On March 10, 2011 the court issued an order that the parties equally share the education expenses of their daughter, Lauren, by making equal payments toward a Stafford loan taken out by the plaintiff in the amount of $22,540.   The court's order was that:  “When the plaintiff receives a notice that a payment is due, she shall make payment and send a copy of the bill and her check to the defendant who shall reimburse the plaintiff one-half of the payment within 15 days receipt of the bill and the plaintiff's check.”

On or about August 5, 2011, the plaintiff decided that she would make two large lump-sum payments to pay off the Stafford loan rather than spreading the loan over a period of years.   She paid $5,000 on that date and $21,249.91 on or about September 30, 2011 in full satisfaction of the loan.   On August 9, 2011, the plaintiff sent the defendant a letter demanding that, in accordance with the court's order, the defendant pay her $2,500 within 15 days to reimburse her for one-half of her $5,000 payment.

On August 23, 2011, the defendant filed motion # 180.50 in which he alleges that when the plaintiff sent her demand letter for $5,000 she accidentally included a copy of TD Bank checking account showing that as of August 8, 2011, after making the $5,000 payment, she still had a balance of $31,778.95.   This is significant because the plaintiff's financial affidavit of February 17, 2011 showed a zero balance in her TD Bank checking account.   The court had based its order March 10, 2011, in part, upon the financial affidavits of the parties.   At the hearing on February 17, 2012, the plaintiff acknowledged that she probably had $37,000–$40,000 in her TD Bank account on March 10, 2011 and that the failure to show this balance on her financial affidavit was an oversight.   These are funds remaining from the property settlement of March 20, 2009 when the defendant received the two pieces of marital real estate and the plaintiff received $47,800 in cash.

The defendant argues that the court's order of March 10, 2011 should be opened based upon fraud which he only discovered until a few days before he filed his motion to reopen (# 180.50).   The plaintiff has moved (# 181) that the defendant be held in contempt for failure to pay a total of $13,124.95 representing one-half of the payoff of the Stafford loan.

The court need not find that the plaintiff was guilty of fraud to accomplish a fair and equitable result in these dueling motions.   The court's order of March 10, 2011 was issued after a lengthy hearing following which the court concluded that the parties should share equally in the payment of the Stafford loan to help finance their daughter's education.   The result would have been the same even if the plaintiff's financial affidavit had accurately shown the TD Bank balance.   The court's order referred to a balance of $22,540 without reference to interest.   The court's understanding was the loan would be paid off over a period of ten years and that the plaintiff would receive monthly invoices which the parties would share.

The order of the court is that the defendant shall repay the plaintiff the sum of $11,270 (50% of $22,540) with 5% interest per annum over a period of ten years by making monthly payments $119.54 per month on the first day of each month commencing on April 1, 2012.   The entire unpaid balance shall be payable when the defendant refinances the Belden Street property or when it is sold, which ever first occurs.¹  Attached is an amortization schedule* which the parties can use to track the unpaid principal balance.   The motion for contempt (# 181) is denied as is the motion to open (# 180.50).

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The separation agreement incorporated into the judgment requires the defendant to “exercise his best efforts to refinance the loan encumbering Belden Street and remove the wife's name therefrom within five (5) years.”*Editor's Note:  The referenced amortization schedule, pg. 3, paragraph 1, has not been reproduced..  FN1. The separation agreement incorporated into the judgment requires the defendant to “exercise his best efforts to refinance the loan encumbering Belden Street and remove the wife's name therefrom within five (5) years.”*Editor's Note:  The referenced amortization schedule, pg. 3, paragraph 1, has not been reproduced.

Pickard, John W., J.