Patricia Misthopoulos v. Noel Misthopoulos (2011)

MEMORANDUM OF DECISION

(Plaintiff's November 9, 2010 postjudgment motions:  # 381 for order re husband's bonus, # 382 for counsel fees, and # 383 to establish child support.   Plaintiff's March 21, 2011 motions:  # 388 for sole custody, and # 389 for set-off)

On November 9, 2010, the plaintiff filed motion # 381, concerning her entitlement to 20 percent of a payment received at the time of the defendant's separation from Bank of America;  motion # 383, to establish child support in light of the remand order by the Supreme Court;  and motion # 382, for counsel fees.   On March 22, 2011, she filed motion # 388, for sole custody ¹ and motion # 388, seeking a set off of any amounts due from the plaintiff to the defendant reduced by such amounts as the court finds to be due from the defendant to the plaintiff.

On April 6, 2011, these matters were addressed at a hearing where the plaintiff, represented by attorneys Gary Cohen and Marci Finkelstein presented witnesses and exhibits concerning the issues.   The defendant was not in attendance.   He has not appeared at any postjudgment hearings.   After the remand to the Superior Court, the defendant attempted to enter an appearance in lieu of his trial counsel Susan A. Moch indicating simply that his address was “Paris.”   No street address was provided and it was rejected by the clerk.   On May 9, 2011, the defendant filed a corrected appearance which was accepted.   Throughout March, the defendant has communicated regularly with the RFTD case flow coordinator by facsimile and phone.   Indeed, he filed an updated financial affidavit on April 6, 2011 ²

By way of background, Patricia Misthopoulos and Noel Misthopoulos were divorced by judgment entered July 25, 2006.   At the time of the original judgment, joint legal custody was awarded to the parties.   The plaintiff is the residential custodian of the three minor children of the parties:  Kristen, Kyle, and Ryan Misthopoulos, triplets born on April 18, 1996.

At the time of the entry of the judgment, the trial court ordered the defendant to pay the following as child support:  $477 per week based on his weekly salary, 20 percent of his annual net cash bonus after state and federal taxes are deducted, and 20 percent of any annual state or federal tax refund that he might receive.   The trial court further ordered the defendant to pay 67 percent of all work-related daycare expenses, summer day camp expenses, and expenses for extracurricular activities for the minor children.   The defendant also was ordered to provide medical and dental insurance for the children and to pay 67 percent of all unreimbursed medical, dental, orthodontia, optical and psychological expenses.   The trial court reserved jurisdiction as to how the children's college expenses should be paid and did not enter any order for payment of those expenses.

The trial court ordered the defendant to pay the following in alimony to the plaintiff for a period of ten years from the date of judgment:  $525 per week;  20 percent of his annual net cash bonus after state and federal taxes;  and 20 percent of any state or federal tax refund he received.   In addition, the defendant was ordered to obtain medical insurance for the plaintiff for the maximum period allowed by federal law.   The defendant also was ordered to designate the plaintiff as the beneficiary of a life insurance policy in the amount of $2 million to remain in effect for as long as he was obligated to pay alimony, child support or post-majority educational support.

The trial court also divided the parties' marital assets, which, other than the marital home, consisted primarily of bank accounts and investment accounts.   The total assets awarded to the plaintiff were valued at more than $3.2 million.   The total assets awarded to the defendant were valued at more than $457,850.   The trial court also awarded the plaintiff 70 percent of the parties' vested restricted stock and 70 percent of the parties' vested stock options.   The trial court awarded the defendant 30 percent of the parties' vested restricted stock, 30 percent of the parties' vested stock options and 100 percent of the parties' unvested restricted stock and stock options.

After an appeal was heard by the Supreme Court, the 20 percent order for additional child support, based upon the defendant's cash bonus, was vacated and the matter was remanded to the trial court for new orders of child support.   In all other respects the judgment of the court was affirmed.   Misthopoulos v. Misthopoulos, 297 Conn. 358, 390, 999 A.2d 721, 741 (2010).

Child Support and Arrearage Guidelines

The trial court, on July 25, 2006, ordered the defendant to pay weekly child support in the amount of $477, based on his weekly salary. $477 is the amount designated in the schedule when there are three minor children and the combined net weekly income of the family is $2,080 per week, or $108,160 per year.   The defendant's annual base salary was approximately $150,000 per year.   At the time of dissolution the plaintiff had earned approximately $25,000 in commissions from real estate.   While the trial court did not make specific findings concerning the available net or gross income of the parties, the trial court found that when the defendant's yearly bonus was included in his income his total net income was well in excess of $5,000 per week.   The child support guidelines reach a maximum weekly net income of $4,000 per week.   Where the combined net weekly income exceeds $4,000, the court must continue to follow the two basic principles set out in the Guidelines.   The first principle is that “the amount of support prescribed at the $4,000 level is presumed to be the minimum that should be ordered in such cases.”   Child Support and Arrearage Guidelines (2005), Preamble, § (e)(6).   The other basic principle recognized in the Guidelines is that “spending on children declines as a proportion of family income as that income increases.”   Guidelines, Preamble at § (d).  So long as these principles are honored, trial “courts remain free to fashion appropriate child support awards on a case by case basis.”   Id. § 5(e)(6).   See also, Maturo v. Maturo, 296 Conn. 80, 92–96 (2010).   In short, the Maturo decision holds that so long as the court remains above the “floor” of a basic child support obligation of $686, and below a “cap” of 17.16 percent of the combined net weekly income of the parents, the court is operating within and not departing from the Guidelines, albeit with some measure of discretion.

Using the combined net weekly income of the parents, determined to be $5,000, the basic child support obligation (line 16) must be between a floor of $686 per week and a cap of $858 a week.   Application of the Guidelines worksheet at these figures yields a low of $640 and a cap of $858 for the defendant's contribution.   After considering all the relevant factors in this case including, the remaining child support orders concerning payment for comprehensive health insurance, unreimbursed medical expenses, education, day care, summer camp and extracurricular activities, the court determines the support obligation of the defendant should be $640 a week and the percentage of responsibility for unreimbursed medical and child care expenses shall be at the rate of 93 percent to defendant and 7 percent to the plaintiff.

ADDITIONAL FINDINGS OF FACT

1.  The defendant has defaulted in his periodic alimony payments since September 15, 2008 and has an arrearage in the amount of $69,300, as of April 6, 2011.

2. The defendant either resigned from or was discharged from his employment at Bank of America in November of 2006, and upon leaving received a net cash payment, after state and federal taxes, of $632,178.73, which payment was a bonus for the defendant's work in the period prior to his separation from the company.   The defendant owes but has not paid to the plaintiff as additional alimony an amount equal to 20 percent of that amount:  $126,436.

3. The defendant has failed to pay to the plaintiff 60 percent of his interest in the Bank of America 401(k) Restoration Plan. At the time of the trial, the balance in the defendant's plan was $103,156.   The plaintiff's 60 percent share of the defendant's plan is $61,894.60.

4. The defendant has failed to transfer to the plaintiff 60 percent of his Hudson Bank IRA which had a value of $123,956 at the time of trial.   The plaintiff's 60 percent interest is $74,373.60.

5. The defendant's 40 percent share of the plaintiff's interest in her Citibank incentive savings as of the time of trial is $50,114.15.

6. The defendant's share of plaintiff's Hudson IRA as of the time of trial is $7,489.26.   Neither interest has been conveyed to the defendant.

7. The plaintiff has an obligation to reimburse the defendant for a country club payment in the amount of $5,000.

8. The defendant has failed to pay to the plaintiff 60 percent of the value of his time share in Florida, which amount equals $9,600.

9. The defendant has failed to pay to the plaintiff 60 percent of the value of his time share in Colorado, which amount equals $18,600.

10. The defendant has failed to pay to the plaintiff 60 percent of his security deposit on the rented home in accordance with the judgment, which amount equals $6,600.

11. The defendant has failed to pay to the plaintiff 60 percent of his Hudson Bank savings account, which amount equals $84,054.

12. The defendant has failed to pay to the plaintiff 60 percent of the value of his Hudson Bank checking account, which amount equals $31,786.

13. The defendant failed to pay to the plaintiff one-half of the tax refund pursuant to the judgment in the amount of $17,500.

14. $420,000 is due to the defendant upon the sale of the Darien residence property, plus simple interest at the rate of 3 percent per annum from the date of judgment to the date of sale of the principle residence.   The interest due would be $12,600 per year, or $1,050 per month.   Effective July 25, 2011, the interest for 60 months is $63,000.

15. The plaintiff's obligations to the defendant effective July 7, 2011 total $545,603.

16. Exclusive of child support, the defendant's obligations to the plaintiff effective July 7, 2011 total $500,144.15.

17. The defendant has made child support payments in the amount of $477 per week from the date of dissolution up to and including June 25, 2008.

18. On April 4, 2011 the Court, Solomon, J. ordered the defendant to pay all attorneys fees in connection with the pretrial held at the regional family docket on April 4, 2011 as sanctions for the defendant's failure to appear in accordance with the order of the court.

Orders

1.  In accordance with the child support and arrearage guidelines the defendant shall pay $640 a week in child support and the percentage of responsibility for unreimbursed medical and child care expenses shall be at the rate of 93 percent to defendant and 7 percent to the plaintiff.³

2. The defendant shall pay counsel fees to the plaintiff the amount of $2,625 as sanctions for the defendant's failure to appear at the pretrial in this matter in accordance with the orders of the court.⁴

3. The plaintiff's obligations to the defendant totaling $545,603 shall be reduced by such amounts as the defendant owes to the plaintiff which total $500,144.15 exclusive of child support.   Lynn v. Lynn, Conn.App. (2011) (Slip Op., 8).

It is so ordered.

HARRY E. CALMAR, JUDGE

FOOTNOTES

FN1. At the conclusion of the hearing on April 6, 2011, the court found the defendant has not had contact with his three children since December of 2008, that he is the subject of a warrant for his arrest arising out of domestic violence involving the plaintiff as well as one of the children, and that he has absolutely no involvement with their health, education or welfare.   The court found it was in the best interest of three children that the mother have sole legal custody and that the defendant be denied all visitation or access to the children until further order of the court..  FN1. At the conclusion of the hearing on April 6, 2011, the court found the defendant has not had contact with his three children since December of 2008, that he is the subject of a warrant for his arrest arising out of domestic violence involving the plaintiff as well as one of the children, and that he has absolutely no involvement with their health, education or welfare.   The court found it was in the best interest of three children that the mother have sole legal custody and that the defendant be denied all visitation or access to the children until further order of the court.

FN2. On March 29, 2011 the plaintiff, anticipating the absence of the defendant, filed a memorandum addressing the court's jurisdiction.   The plaintiff argues for a finding of constructive notice as to the defendant concerning these proceedings by virtue of the notice the plaintiff's counsel has provided:  certified mail, return receipts requested, to his last known address, as well as notice to his parent's mailing address, certified mail, return receipts requested.   The court finds, however, in light of the defendant's communications and filings with the RFTD caseflow coordinator by facsimile and phone that he had actual notice of the proceedings..  FN2. On March 29, 2011 the plaintiff, anticipating the absence of the defendant, filed a memorandum addressing the court's jurisdiction.   The plaintiff argues for a finding of constructive notice as to the defendant concerning these proceedings by virtue of the notice the plaintiff's counsel has provided:  certified mail, return receipts requested, to his last known address, as well as notice to his parent's mailing address, certified mail, return receipts requested.   The court finds, however, in light of the defendant's communications and filings with the RFTD caseflow coordinator by facsimile and phone that he had actual notice of the proceedings.

FN3. This order is effective retroactive to the trial court's decision on July 25, 2006 and does not reflect changes in the defendant's economic circumstances, which are asserted in postjudgment financial affidavits, since the date of judgment.   Appropriate motions seeking modification based on a substantial change in circumstances may result in the subsequent modification of these orders..  FN3. This order is effective retroactive to the trial court's decision on July 25, 2006 and does not reflect changes in the defendant's economic circumstances, which are asserted in postjudgment financial affidavits, since the date of judgment.   Appropriate motions seeking modification based on a substantial change in circumstances may result in the subsequent modification of these orders.

FN4. The plaintiff was charged 3.5 hours at an hourly rate of $750..  FN4. The plaintiff was charged 3.5 hours at an hourly rate of $750.

Calmar, Harry E., J.