Susan W. Rosen v. Gary S. Rosen (2012)

MEMORANDUM OF DECISION

The parties were divorced on January 15, 2009 and the agreement between them was incorporated by reference into the judgment of dissolution of marriage.   The parties were to sell their residence and upon a sale to divide the net proceeds equally.   The parties continued residing in the family residence until its sale.

The agreement or judgment between the parties provided for them to contribute money into a joint bank account to pay household expenses.   The defendant was to contribute $12,000 a month and the plaintiff $2,000 per month.   The wife was to manage this account and to write checks.   At the time of the residential closing the parties were to then divide equally a Goldman Sachs Brokerage account, which was the proceeds of the defendant's income essentially as a “day trader.”

The plaintiff/wife seeks half of any/all earnings or deposits made into the Goldman Sachs account.   Her claim is that it was joint and she owned one-half of the account.   The defendant/husband's position is that the Goldman Sachs account was the primary source to pay the household expenses pending the closing of the family residence and that the proceeds remaining in that account were to be divided between the parties at the closing.   It became evident that the agreement between the parties did not address the later concerns and claims by the parties.   Certainly, there was no mechanism for an accounting or review by either party of both the Goldman Sachs account or the family joint checking account the wife managed and wrote checks against.   There was no definition or parameters set forth in the agreements to what constituted “household expenses.”   Both parties invaded the joint checking account for their own benefits.   The wife left her employment and began receiving unemployment checks from August 2010 and thus the court finds that for a nine-month period the wife did not contribute $18,000 into that account.   The wife argued that she did in fact pay that sum into the joint account from her own personal savings account and some other investments.   However, the court finds that the wife transferred substantial sums from the joint family checking account to her own account(s) for her own personal savings or personal use.   The various accounts and the funds therein were commingled or merged.

It is clear that the claims by the wife that one-half of all the deposits income into the joint Goldman Sachs account from the time of the dissolution of marriage to the sale of the home and that the defendant husband's contribution of $12,000 a month was to come from the husband's one-half of that account would be double dipping.   The court's reading of the parties' agreement is that the balance of that Goldman Sachs account was to be divided equally between the parties at the time of the residential sale.

The court finds that the parties continued to function financially as if they remained a trusting married couple.   They invaded both the joint checking account and other funds as they personally saw fit to do so without notice or authorization from each other for their own expenditures or the transfer of money from one account to another.   While the lengthy time that it took to sell the residence after the divorce, some thirty-two months, was unanticipated in the agreement, the lack of definition or guidelines, or financial disclosures between the parties led to further mistrust.   Therefore, the plaintiff's motion for contempt as set forth in paragraph 1 of her motion (# 119) is denied.   Although the claimed order set forth in the agreement is not a clear one, the court finds that to follow the plaintiff's interpretation is not accepted by the court and not what appears to be the parties' agreement.   Therefore, the defendant is not in contempt of that portion of the plaintiff's motion.   The court finds that the defendant did offer to divide the Goldman Sachs account at the time of the sale of the residence but that the plaintiff was wary of the amount proposed to be tendered.   Disagreement over that account ensued.   There is no finding of contempt as the defendant did not wilfully refuse to pay said funds to the plaintiff.

The plaintiff in paragraph 6 of her motion for contempt is denied in that while the defendant withdrew some $80,000 from the parties' Goldman Sachs account that the husband overpaid $35,000 into the joint checking account during the 32–month period from the dissolution of marriage to the residential sale and that was credited to the wife's one-half of $40,000 which would have been subject to division between the parties.   The husband owes the wife $1,000 to be paid by December 31, 2012.

The plaintiff's motion for contempt as it relates to Paragraph 3 of said motion addressed the college education of their child.   The court finds that the plaintiff has paid the amounts due on the outstanding student loans for their daughter's education.   The defendant owes the plaintiff one-half of the total amount, therefore the defendant owes the plaintiff $5,023.12.   This amount of money is to be paid to the plaintiff by November 15, 2012.   No notice of these bills were provided to the defendant and therefore he was unaware of the receipt of said bills.   The defendant is responsible for all of the outstanding loans and the payment thereon.   The parties shall exchange upon receipt of any said invoice/bills for said loans to each other within five business days of receipt of same.   The court finds that $15,120 was expended for their daughter's rent while at college and that $3,665 was paid toward that rent from the parties' joint checking account.   Therefore, the parties have paid a portion of those rental expenses from their “household expenses.”   The outstanding amount is $11,455 and the defendant owes the plaintiff $5,727.50 which is to be paid by December 31, 2012.

There is no finding of contempt as to the portion of the plaintiff's contempt motion.

The defendant's motion for contempt against the plaintiff for her alleged failure to pay some $18,000 into the parties' joint checking account in that the plaintiff did not deposit monthly $2,000 from her employment there was testimony that she deposited funds from her own accounts in 2011.   The court cannot determine where the source of money in the plaintiff's accounts came from, either from the time of the judgment or from funds transferred into the joint checking account to be used for “household expenses.”   There is no finding of contempt.

All money due the plaintiff from the defendant herein e.g., college expenses and for college loan payments to date are to be paid to Attorney Kellogg as a Trustee for the plaintiff in this matter.

The defendant/husband has filed a motion to modify alimony which is retroactive to March 5, 2012.   The court finds that there has been a substantial change in circumstances in that the amount of money the defendant has access to for investment/day trading is substantially less then at the time of the dissolution of marriage.   The defendant's motion to modify alimony is granted and he is to pay to the plaintiff $1,000 a month retroactive to March 5, 2012.

The court finds that the defendant was ordered to pay the plaintiff the sum of $2,500 a month to commence on the day of the sale of the marital residence plus 10% of his profits from his personal trading accounts per month.   The court finds that portion of alimony award referring to a percentage of the defendant's profits ambiguous.   Was the percentage to be paid to the plaintiff based on the gross amount, a net amount, or any amount pre or post taxes (federal and state) due?   Therefore, that portion of the alimony agreement is not clear.   The defendant does owe to the plaintiff $2,500 a month until the modification of said order herein on March 5, 2012.   Therefore, six months and two weeks of alimony or $16,153.84 is due the plaintiff.   The defendant has not paid that sum which is a clear order.   The defendant is in willful contempt of said order and is ordered to pay to the plaintiff the sum of $500 a month commencing June 15, 2012 until said arrearage is paid.   The plaintiff is awarded reasonable counsel fees in the amount of $3,500 and that amount shall be paid to the plaintiff by December 31, 2012.

BY THE COURT

Malone, J.

Malone, John P., J.T.R.