Kristin Chorba v. Joseph Chorba (2012)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION FOR CONTEMPT (129.5), PLAINTIFF'S MOTION FOR CONTEMPT (133) AND DEFENDANT'S MOTION FOR MODIFICATION (135)

A review of the record reveals that the parties are the parents of two minor children who are now 15 and nearly 12.   They had entered into a stipulation on February 9, 2009 which modified the Connecticut domesticated Pennsylvania judgment from 2006 wherein the father would pay child support in the amount of $1,000 per month no later than the 15th of each month and 65% of the “related fees and expenses for the children's activities ․ which include but are not limited to registration fees, uniforms, equipment, transportation for school field trips, after school program, summer camps and birthday parties.”   The agreement also provided that the father would have visitation with the children every other weekend from Thursday evening until Monday evening during the summer and one weekend per month during the school year.

The parties returned to court on January 24, 2011 and modified the support order, reiterating that the child support would continue at $1,000 per month plus 65% of said extracurricular costs but that he would receive a six-month downward modification of $250 per month which would later be made up at the rate of $100 per month on the accumulated arrearage.   Interestingly, the handwritten agreement of the parties repeated twice that the father would continue to pay 65% of extracurricular costs.

The parties returned to court relative to the plaintiff mother's first motion for contempt.   The court found that there was no willful contempt, due to his unemployment but that nonetheless, the defendant father was ordered to pay $1,626.85 within 30 days.   The plaintiff mother's motion for attorneys fees was denied without prejudice.

The parties returned to court on April 4, 2012 to argue the defendant mother's most recent motion for contempt (133) as well as the plaintiff father's motion for modification.   Both parties appeared and were represented by counsel.   At the conclusion of the hearing, both parties were directed by the court to submit child support guidelines worksheets to reflect the incomes disclosed during the hearing.   The plaintiff mother filed a child support guidelines worksheets showing a minimum wage earning capacity of the mother of $330 per week and an earning capacity of the father of $1,308 per week yielding a presumptive child support order of $274 per week.   The defendant father submitted several child support guidelines worksheets, one of which showed the mother with a minimum wage earning capacity of $320 per week and the father with a projected income of $625 per week yielding a presumptive child support of $169 per week.

The court finds proven by a fair preponderance of the evidence the following facts:

1. The defendant father was a union flooring installer who earned up to $81,000 per year at one time, earning $72,000 per year in 2008 and $59,000 in 2009.

2. The defendant father was laid off from employment in October 2010 and collected unemployment compensation of approximately $560 per week until December 2011 when it terminated.

3. The defendant father testified credibly that union rules prohibit union members from working in their industry on non-union jobs and to do so would jeopardize his future employment as a union laborer and could lead to the loss of his union pension and other benefits.

4. To his credit, the defendant father has never missed a child support payment, although he has been chronically late by several weeks.

5. He testified that he has no means of support or income but later corrected himself that he is working side jobs of three to four days per week at $125 per day, plus doing side jobs for family and friends for no pay, plus receiving “loans,” gifts or other regular support from his mother with whom he lives.   Notwithstanding his dire financial circumstances, he managed to have recently purchased a 2006 Buick Lacrosse, a 2010 Harley–Davidson, continues to own an old Camaro and a Ford 350 pickup truck.

6. While the court credits his testimony that he is unable to realistically work in his chosen profession, he is able to work side jobs, casual jobs and could certainly work at other jobs such as Home Depot, Lowe's, Wal–Mart or any other construction related or labor related job outside of his union profession.   He was a mechanic for 11 years in the U.S. Navy. The court finds that he has an earning capacity of $700 per week.

7. Given the father's earning capacity of $700 per week and the mother's earning of $0 per week, the presumptive child support order should be $195 and that going forward, he pay 65% percent of any unreimbursed extracurricular expenses.

8. At the time of the last court order, January 24, 2011, he was earning $560 per week, collecting unemployment compensation.

9. The court finds that there has been no substantial change in his income or earning capacity which would justify a modification.

10. The motions for contempt involved the defendant failing to pay to the plaintiff the court order of $1,626.85 within 30 days and in the correct amount.   He paid $1,625 three months late.   The court finds that the shortage of $1.85 was most likely an unintentional error.   The court finds that the payment, approximately 90 days after it was due, was willful and the defendant is held in contempt for that action.

11. The second issue of contempt involves the defendant's failure to pay to the plaintiff the unreimbursed medical, dental and extracurricular activity fees.   Specifically, the defendant should have paid $1,244.05 for October 2011;  he paid $258.74 leaving a shortfall of $985.31.   The defendant should have paid $554.25 for November 2011.   The defendant should have paid $214.08 for December 2011.   The defendant should have paid $236.91 for January 2012.   The defendant should have paid $272.39 for February 2012 and finally, the defendant should pay $392.18 for March 2012 for a total due of $2,655.12.

12. The court finds that these expenses are reasonable under the circumstances and the defendant is ordered to pay to the plaintiff the sum of $2,655.12 within 120 days.

13. The court finds that the plaintiff did not incur attorneys fees notwithstanding the fact that her counsel provided to her excellent legal representation.   Her lawyer is employed by her husband's law firm and the court does not believe that she necessarily incurred these fees.

14. Notwithstanding the fact that the father failed to prove that he has sustained a substantial change in circumstances since the last court order, it is clear that the present child support of $232.56 per week deviates from the presumptive child support of $195.

ORDERS:

1. The defendant is found in contempt for his failure to pay the unreimbursed extracurricular activities as previously ordered.   He is ordered to pay the sum total of $2,655.12 within 120 days.

2. The defendant shall pay child support in the amount of $195 per week and 65% of any extracurricular or unreimbursed medical expenses.

3. The motion for counsel fees is denied.

Shluger, J.

Shluger, Kenneth L., J.