Thomas Simna v. Anna Simna nka Anna Bachleda (2012)

RULING RE DEFENDANT'S MOTION FOR CONTEMPT, POSTJUDGMENT # 242

The marriage of the parties was dissolved on February 5, 2008.   The Plaintiff–Husband was ordered to pay $178 per week as child support to Defendant–Wife.   The order was based on his net income of $690 per week as a self-employed carpenter.   On May 6, 2008, he claimed that his income had decreased.   He filed a sworn financial affidavit showing his net income had decreased to $165 per week.   After hearing on May 6, 2008, the court concluded that neither his testimony nor sworn financial affidavit was credible.   The court found that he had earned income and that his income had not decreased by two-thirds as he had claimed.   It further found that he had an earning capacity of $643 per week net income as a self-employed carpenter.   He was ordered to pay $198 per week as child support to Defendant.

The child support payments were to commence after the marital home was sold.   The marital home was sold on or about August 3, 2009.   On June 23, 2010, the Plaintiff moved to the court to decrease his child support obligation.   He alleged that he had “suffered a drastic and substantial loss of income due to the current economic recession.”   He alleged he was unemployed and that his net income had decreased to $87 per week.   After hearing, the court concluded that his average net income was not $87 per week, as he claimed.   It found that his net income had decreased by $87 per week;  his earning capacity as a self-employed carpenter had not substantially changed;  that he'd failed to make reasonable and diligent efforts to find other employment commensurate with his earning capacity;  that his family provided him with substantial financial support;  that he'd received $20,000 from the sale of real property;  that he had $12,769 in a bank account;  and that he was spending in excess of $440 per week (excluding alimony and child support payments).   He was ordered on July 12, 2010, to resume making child support payments of $198 per week to the Defendant on October 13, 2010.

On August 22, 2011, the Defendant moved the court to find the Plaintiff in contempt of the orders it issued on July 12, 2010.   She alleged that he failed to make child support payments, as was ordered, from May 23, 2011, through August 22, 2011, and was $1,584 in arrears.   The Defendant's motion for contempt was scheduled on August 24, 2011 for a hearing on September 26, 2011.   On September 17, (eight days prior to the hearing) the Plaintiff paid $1,188 of the accrued arrears.   When the parties appeared before the court on September 26, 2011, he was only one week in arrears.   The Defendant then requested that she be awarded attorneys fees for having to bring the issue before the court.   Her request for counsel fees was denied at that time.   Notwithstanding the payment, she elected to proceed with prosecuting her motion for contempt.   She sought the remainder of the arrears, a finding of contempt for repeatedly making the payments late, and an award of attorneys fees for having to bring the issue before the court.   The hearing commenced then September 26th.   It continued on October 25, December 16, 2011, February 16, 2012, and March 15, 2012, whereupon it concluded as to the Defendant's motion # 242.

The Plaintiff made no payments of child support between September 26th and October 10, 2012.   On October 10, he paid $198.   Thereafter, and just two days before returning to court on October 25, for the continued hearing, he deposited $792 into the Defendant's bank account.   The payment brought him up to date on the child support arrears.

He was ordered on September 26, 2011, to directly deposit the child support payments into the Defendant's bank account every Monday and on time.   Since September 26, 2011, he has been repeatedly late in making the child support payments.   When the parties appeared before the court on February 16th he was again in arrears.   By March 16, 2012, he was four weeks in arrears.   He made a payment of $316 on March 13th and still remained two weeks in arrears.

Prior to February 16, 2012, the Plaintiff neglected and failed to disclose on his sworn financial affidavits filed with the court his Peoples United Bank checking and savings account.   He also failed to disclose his account with the Mutual Security Credit Union.   Statements introduced into evidence by the defendant disclosed that he deposited $30,800 into the Peoples United Bank checking and savings account in April 2011;  $4,335 into this account in July 2011;  $7,000 in August 2011;  $2,000 in September 2011;  and $4,000 in October of 2011.   In November of 2011, he deposited $4,509 into his account with the Mutual Security Credit Union.   He claims that his annual income is approximately $35,000.   He failed to present sufficient evidence to support his assertion.   The court finds that his average net weekly income of $643 and earning capacity of $643 per week, as a self-employed carpenter, have not substantially changed since July 12, 2010.   During the period May 23, 2011 to the present, he had an average net weekly income of $643 per week.   The court finds that he had the ability to comply with its order to pay $198 per week as child support to the Defendant.

Conclusion:

The court finds the Plaintiff non-compliant with its orders issued on July 12, 2010, and September 26, 2011, and that he willfully failed and neglected to make the payments of child support as were ordered by the court.   The court concludes that he had the income and financial resources enabling him to comply;  that he willfully chose not to comply;  neglected the court's orders;  and instead knowingly and intentionally gave priority to other creditors.   The court finds the Defendant in contempt of its orders.

Attorney Fees:

“General Statutes § 46b–87 provides that the court may award attorney's fees to the prevailing party in a contempt proceeding.   The award of attorney's 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 Defendant is granted attorney fees of $2,500 due to the Plaintiff's non-compliance with the court's orders.   The court finds such amount to be fair and reasonable for attorneys fees incurred on her Motion for Contempt.

Orders:

The Plaintiff is hereby ordered to:

1. Pay the total child support arrears in full by April 27, 2012;

2. Make the current child support payments of $198 by Monday of each week as they become due subsequent to the issuance of this ruling and these orders;  and

3. Pay the sum of $2,500 to the Defendant's attorney by Friday, June 1, 2012, as attorneys fees awarded to the Defendant.

Turner, J.

Judge of the Superior Court

Turner, John, J.