Paul Langevin v. Sharon Langevin (2012)

MEMORANDUM OF DECISION RE POST–TRIAL MOTIONS # 211, # 212, # 216, # 221, # 222, # 223, & # 225

Background

The court heard the above captioned motions over a two-day period.   The plaintiff father has signed several documents.   His signature is on the separation and property settlement agreement dated January 13, 2004.   He also signed several financial affidavits.   The court has in its possession several financial affidavits signed by plaintiff father dated, January 13, 2004, December 3, 2004, May 21, 2009, December 16, 2011, and a current pay stub from TPS II of PA LLC dated November 18, 2011.   Also, plaintiff father signed a stipulation concerning the custody and support of the minor child, as well as obligations to provide defendant mother contact with and about said minor child, dated June 15, 2009.   Lastly, plaintiff father signed a stipulation agreement on November 8, 2010, whereby he acknowledged that he owed an arrearage as of March 9, 2010, in the amount of $23,671.54 and said order was signed by Judge Ginocchio.

Motion # 211

The testimony was that the defendant was owed $35,689.92 for past alimony and the court so finds.   Since the plaintiff did not make any alimony payments from March 29, 2010, through November 8, 2010, this court finds the plaintiff in contempt and orders the plaintiff to make said payment within thirty days of this judgment, minus any payments made to date by the plaintiff and also minus any set-offs ruled upon in the plaintiff's motion # 22l which amounts to $11,369.79.   If payment in full is not received within thirty days of the filing of this judgment, interest will accrue at ten percent per annum on any remaining balance.

Motion # 212

On June 15, 2009, the plaintiff and the defendant signed a detailed stipulation concerning said minor child, who will be seventeen on April 28, 2012.

The defendant claims she has not been informed by the plaintiff as to all the information ordered in the June 15, 2009 stipulation.

Although there was not extensive testimony, the plaintiff technically is in contempt for not providing the agreed upon information.   The plaintiff has disregarded and failed to respond to all inquires from the defendant concerning this matter.   This court finds that a seventeen-year-old is in the position to decide what type of contact he wants with defendant mother.   The child has been with plaintiff father for over three years, living in either New Jersey or Pennsylvania, and, at this time, the court finds that any further communication between son and defendant mother should not be forced.

Although the court does not approve of the plaintiff's conduct, the court does not find him in contempt.   The Superior Court for the Judicial District of Litchfield shall continue to have jurisdiction over this matter notwithstanding the relocation of the minor child from the State of Connecticut.

Motion # 216

Motion for modification was filled out and filed personally by the plaintiff on October 22, 2010.   The motion requested that visitations end with son Nicholas, a decrease in alimony payments and modification of custody with no contact by mother.   This after-judgment form was filed one year and four months after the stipulation concerning the plaintiff's motions # 192 thru # 208, some thirteen motions were considered.   Further, after this motion was filed, on November 18, 2010, the plaintiff signed and acknowledged he owed $23,671.54 for past alimony (this seventeen days after filing motion).

As far as that portion of the motion, which asks for a restriction as to the defendant's contacts with Nicolas' school, counselors, health agents, and the like because the child has reached an age where he can pursue his own life, the motion is granted.

Motion # 221

The plaintiff in his motion requests set-offs for accountant fees for income tax preparation, over-payment of child support payments, payment as required by Article XI of separation agreement, and one-half of storage fees from 2004 thru 2007.   This court finds that the plaintiff is entitled to set-offs in the amount of $11,369.79;  this amount to be deducted from the court's finding in motion 211.

1. Half accountant fees for preparation of income tax returns, $1,121.52.

2. Overpayment of child support, $3,208.31.

3. Required from separation agreement Article XI, $3,200.00.

4. Half of storage fees, $3,839.96 (said sum was calculated by the court from the information provided by the plaintiff).

Plaintiff's motion # 221 is granted.   Plaintiff is to setoff this amount from amounts owed to the defendant on her motion # 211 for past alimony payments owed by the plaintiff to the defendant.

Motion # 222

According to the paystub submitted by the plaintiff on November 12, 2011 (plaintiff's exhibit three), his current income is $400,468 per year with $321,471 for regular pay and $78,997 for standby pay.   The plaintiff's regular pay at Milford Anesthesia Associates in May 21, 2009, was $350,012.   Without standby pay, his current regular income is $28,541 less.

Alimony may be modified “upon a showing of substantial change in the circumstances of either party.”  General Statutes § 46b–86(a).   The change must have occurred since the most recent proceeding on the issue.  Borkowski v. Borkowski, 228 Conn. 729, 735–36, 638 A.2d 1060 (1994).   Once the court finds a substantial change in circumstances, it must consider the statutory criteria in General Statutes § 46b–82.   The original Separation Agreement, signed by both parties, contemplates rehabilitative alimony as well as a specific term of years necessary for the defendant to achieve financial stability.

After extensive testimony, the court denies the plaintiff's motion to reduce his alimony obligations.   While the plaintiff's arguments were interesting and unusual, a simple review of the defendant's financial affidavit shows that there is very little room for any alimony reduction and the plaintiff is now making more than he did in 2009.

The defendant's affidavit states that her food is $46.00 per week, clothing is $0, and that her assets are minimal.   The plaintiff's counsel argued that the defendant should sell her house and thereby reduce her debts.   The court is not persuaded that such a reduction should be granted.   The defendant's gross income, as of December 16, 2011, from her employment is $23,920.00.   Without alimony, she would be in dire straights.   Motion is denied.

Motion # 223

The plaintiff's motion as to the return of certain personal property is granted as to the following:

1.  Rusty skeleton painting

2.  Oriental toy chest

3.  Thomas Kinkade lithograph

4.  All awards, trophies, and certificates and the like belonging to Nicholas

5.  The collection of author autographed children's books

6.  The court does not order the return of the mother's ring as it appears to be a gift and cufflinks cannot be found.   The $2,000.00 book also appears to be lost.

Both attorneys are to arrange the return of said property at the plaintiff's expense within thirty days.   This is final as to said personal property.

Motion # 225

The defendant's motion for contempt is denied.   While the plaintiff's actions were contemptible and disheartening, they do not rise to a willful citation of contempt.   The plaintiff wasted his precious money on a lost cause since New Jersey does not have jurisdiction over this matter in the first place.   Connecticut has and will continue to retain jurisdiction over the son while he is a minor.

Counsel Fees

The plaintiff has made the defendant jump through many hoops while he decides when to come to court and when to exercise his rights.   The plaintiff has forced the defendant to spend a considerable amount of time and money on legal fees.

The court orders the plaintiff to pay the defendant's attorney fees as stated in attorney Dwyer's affidavit dated January 20, 2012, in the amount of $6,879.02.   Said sum is due and payable in 30 days from the filing of this judgment with interest running thereafter at 10 percent per annum.

Deferred Compensation Plans

The separation and property settlement agreement dated January 13, 2004, provides in article XIV that husband's deferred compensation plans shall be divided equally.   Parties shall share equally any increases or decreases in value until divided.

Neither party sought to effectuate the division of the deferred compensation plans.   On January 13, 2004, the plans were valued at $123,067.   By May 21, 2009, the plans were valued at $288,845, this according to the plaintiff's two financial affidavits.   However, on December 16, 2011, the plaintiff's new affidavit states that TIAA is worth zero and Prudential is at $105,000.   Neither Fidelity nor VA Thrift account or FRRS is listed.

If the plaintiff cashed in any retirement account without court order, he would be in contempt of court.   The court, therefore will monitor the final division of the retirement accounts.

BY THE COURT,

Upson, J.,

Judge Trial Referee

Upson, Thomas F., J.T.R.