Rebecca Nation–Bailey v. Adrian Peter Bailey (2012)

MEMORANDUM OF DECISION

The parties appeared postjudgment before the court on various motions e.g. motions to modify and/or terminate alimony and motion for contempt.

The parties were divorced on February 21, 2007.   The judgment incorporated a separation agreement by reference which addressed in paragraph 3 and its subparagraphs “Alimony and Child Support.”   The defendant alleges the cohabitation by the plaintiff as an underlying reason for a motion to terminate alimony served on April 18, 2011.   Previously, the defendant had filed a motion to modify alimony served on the plaintiff on May 24, 2010.   The parties' judgment sets forth, “Absent agreement, it shall be the husband's burden to prove a substantial change in circumstances prior to any reduction or modification of said minimum amount.   Unallocated alimony and child support shall be paid until the death of either party, the wife's remarriage or cohabitation as defined by C.G.S. § 46b–86(b) or until August 1, 2011.”

The defendant's Motion to Modify dated May 24, 2010 was based upon the loss of income to his self-employment customer base and competition from overseas.   He further testified that his lack of formal education has prevented him from obtaining employment for technical positions with corporations.   The court finds that there has been a substantial change in circumstances and finds that a modification of alimony shall enter.   The court further finds that the defendant has been enabled monetarily by his mother and his girlfriend who pay his living expenses.   He has not taken the appropriate steps to obtain other forms of employment.   The court finds that a person with his skills and of 46 years of age and in good health has a minimum earning capacity of $40,000.00 annually.   Therefore, the defendant is ordered to pay the plaintiff the sum of $200.00 a week retroactive to May 24, 2010.

The plaintiff and a Steven Cooper executed a lease in which the use of the rented home ran from December 9, 2007 to December 9, 2008.   The lease was also signed by the plaintiff's mother as a guarantor.   The evidence, by way of the plaintiff's admission revealed that she and Mr. Cooper met and were engaged to be married in December of 2007 and that she was pregnant.   This relationship terminated in late March 2008.   The court finds that Mr. Cooper resided with the plaintiff at the rented home, that Mr. Cooper's children spent some 4–6 months with the couple at that rented house and that he stored personal items at the home.   The couple vacationed in Mexico together.   The plaintiff and Mr. Cooper shared cell phone plan payments, food and restaurant costs.   Mr. Cooper paid $2,000.00 to the landlord (50% of one month's rent) and paid $1,000.00 directly to the plaintiff as compensation.   The court has considered these factors set forth in § 46b–82 C.G.S. The court further considered the needs and financial resources of each of the parties.   It is further noted that the plaintiff's mother pays the bulk if not all of the plaintiff's living expenses.   Therefore, the court finds that there has been a substantial change of circumstances as a result of the plaintiff's relationship with Mr. Cooper for a period of approximately four months.   The partie's judgment refers in such a situation to the language of § 46b–86(b) C.G.S. Therefore, the court hereby suspends the unallocated alimony/child support paid by the defendant to the plaintiff as of April 18, 2011 for a period of four months (December 2007 to March 20, 2008) pursuant to § 46b–86(b) C.G.S.

The plaintiff filed a Motion for Contempt against the defendant (# 145) which addresses the court order that he maintain life insurance.   Based upon the evidence before the court the motion is denied.

The plaintiff further filed a Motion for Contempt, Postjudgment (# 141) which motion alleges various contempt:  Alimony and Support.   The court finds that the order as set forth in the judgment is clear and that the defendant has not paid $3,500.00 a month for six (6) months for a total of $21,000.00.   In that the defendant's motion to modify the unallocated order of alimony and child support was granted from May 24, 2010 to the present herein the court does not address that time period.   The court does find that the defendant has not paid the plaintiff for the six (6) months of unallocated alimony/child support totaling $21,000.00 and that he has not paid anything for those months, nor has he undertaken the appropriate steps to obtain new employment.   Rather, the defendant has relied on his mother and girlfriend financially to live day to day.   Therefore, the court finds the defendant willfully in contempt and orders him to pay the plaintiff the current order of $200.00 a week in alimony and to pay $250.00 a month to the plaintiff on the arrearage of $21,000.00 commencing May 1, 2012.   The court will award the plaintiff reasonable counsel fees at a later hearing.   The court orders both parties to provide to each other any employment or receipt of any compensation of any form within five (5) days of such receipt.   The parties shall provide copies of any initial pay stubs/checks to each other within five (5) days of receipt of such check(s).

The plaintiff further moves to find the defendant in contempt of Paragraph 8 entitled “Liabilities” in their Separation Agreement.   The plaintiff testified that her mother negotiated and or paid the outstanding liabilities referred to in Paragraph 8. The court finds that the plaintiff's mother acted without the authority or knowledge of the defendant.   Therefore, the court finds that the plaintiff's mother acted on her own volition and voluntarily paid said liabilities.   The order was clear, there was not a clear violation of the order in that the parties themselves were unable to agree on any negotiated bills and the plaintiff's mother relieved the parties unilaterally of the payment for such liabilities and thus, the motion for contempt based upon this allegation is denied.

BY THE COURT

MALONE, J.

Malone, Robert J., J.