Gary Kravetz v. Donna Kravetz (2012)

CORRECTED MEMORANDUM OF DECISION (Correction to Memorandum of Decision dated April 19, 2012.   Correction Made is to the Numbering of Defendant's Motion of Contempt re:  College Expenses)

The parties were divorced on October 20, 2004 after a 23–year marriage that produced four children.

Pursuant to J. Alvord's decision the plaintiff was to pay alimony as follows:

And (2) that the plaintiff shall pay alimony to the defendant for fourteen years.   For the first four years, the plaintiff shall pay to the defendant the gross sum of $114,400 per year as periodic alimony payable weekly at the rate of $2,200.   For tax purposes the payments shall be includable in the defendant's income and deductible by the plaintiff.   After said four-year period, alimony shall be reduced to $1,200 per week for a period of ten years, reflecting the fact that, after the initial four year period, not only will the defendant's home, a substantial asset, be unencumbered, but, importantly, defendant's child care responsibilities shall be measurably reduced as the children mature and defendant can increase the hours devoted to her internal medicine practice to at least three days per week.   The alimony is nonmodifiable as to terms except the alimony shall terminate in the event of either party's death or the defendant's remarriage or cohabitation.   The alimony is modifiable as to amount:  if the plaintiff's annual income (base pay plus bonus) increases or decreases by 25%, or if the defendant's annual income increases to $200,000 or more.   The plaintiff shall continue to maintain medical and dental insurance for the minor children.   The parties shall split all unreimbursed medical and dental expenses 50–50, after the defendant pays the first $100 per calendar year per child.   The defendant is to document meeting the threshold $100, and whichever party seeks reimbursement shall submit the bills and/or receipts to the other party within thirty days.   Conn. Gen. State.   Sec. 46b–84 applies.   The parties' respective 50% expense sharing responsibilities are not triggered if the advance notice, herein, at para. 3.G., is not followed.

The child support orders in the judgment provided as follows:

And (3) that the plaintiff shall pay the defendant child support in the amount of $1,200 per week, for the four children.   The plaintiff shall pay the defendant an additional child support amount of $200 per week towards the children's counseling bills, such payment is controlled by the court's orders herein at para. 3.H., and this amount is payable for so long as documented counseling continues, but in no event beyond age 19 of each of the children.   Thus, the annual child support amount payable by the father is potentially $72,800.   The presumptive child support is approximately $600 per week;  and the court finds it appropriate and equitable to apply the deviation criteria to order an amount substantially in excess of the child support guidelines, on the basis of the coordination of total family support.   Specifically, but not exclusively, this generous child support order is necessary;  first, to counteract the disinformation provided to the children, over the last two years, relative to their father not paying for what they need, second, to incent the custodial parent of these children to enroll them into regular therapy as soon as possible, and finally, to take into account that these children have enjoyed a standard of living well in excess of their needs, and this divorce should not unduly alter that, to the extent financially possible.   Finally, it should be noted that total family support, paid by the plaintiff to the defendant, is $187,200 per year, for four years, then $135,200 for ten additional years.

As of the date of dissolution the children had UGMA accounts and Post–Majority Educational Support ordered the following:

And (15) that all Uniform Gift to Minors Accounts shall hereafter have both parents as co-custodians.   All investment decisions shall be made by the plaintiff.   Neither parent nor both parents acting together shall use the accounts for anything but the children's sole benefit.   After the liquidation of the UGMA accounts, both parents shall be responsible for the four minor children's college expenses, determined as equivalent to the cost that the University of Connecticut charges Connecticut residents to be in residence at Storrs, Connecticut, with the plaintiff contributing 60% and the defendant contributing 40%.   Such expenses shall include tuition, room, board, fees, and reasonable transportation expenses incurred by the children during their attendance at a junior college, four years college or vocational/technical school beyond high school.   The obligation herein shall be subject to both parents participation in the decision-making process relating to such college education.   The court shall retain jurisdiction.

On July 21, 2005 the parties signed a stipulation approved by the court wherein mother and children relocated to Wantogh, Nassau County, Long Island, NY.

On January 20, 2006 the court ordered each party to record the amounts they spend on batteries for their son's cochlear implants to share this cost equally.

A hearing was held October 30, 2008 and December 2, 2008 to resolve numerous postjudgment motions.   The plaintiff sought to reduce his child support by $300 because the oldest child reached age 18 and was attending college.   Judge Caruso examined the applicable child support guidelines and “determined the trial court doubled the guideline support from $600 to $1,200 (for four children).   The court determined that child support per the guidelines should be $600 and for three children $541 a difference of $59.   Therefore the court reduces the child support by $209 (since the trial court doubled the presumptive amount).”

Judge Caruso also ordered “both parties are ordered to meet their obligations as they became due by the educational institution and cannot unilaterally set up their own payment plan.”

On March 20, 2010 Judge Caruso clarified his May 16, 2009 decision stating “the court (Alvord, J.);   in its judgments doubled the presumptive child support of $600 to $1,200 for the reasons set forth.   The presumptive child support should be reduced in accordance with the applicable child support guidelines when each child attains the age of majority and the additional child support reduced by 1/4 of $600 or $150 for a total reduction for Emily of $209.   For Emily the court reduced the presumptive child support in accordance with the guidelines by $59 and reduced the additional child support by $150 for a total of $209.   As each remaining child attains the age of majority the child support shall be reduced in the same manner.”

The defendant appealed Judge Caruso's child support reduction and other orders.   The Appellate Court affirmed Judge Caruso's decision on February 8, 2011.

The plaintiff filed a Motion to Modify (# 282) on January 14, 2012, the defendant objected on March 14, 2012 (# 283), the defendant filed a Motion for Contempt (# 285) on March 14, 2012 and on March 28, 2012, (# 293) filed an Amended/Revised Motion for Contempt.

The court heard testimony and on March 21 and April 4, 2012 counsel submitted written closing arguments on April 9 and 10, 2012.

The plaintiff seeks a modification of his alimony as a result of a 25% reduction in his earnings.   The last modification of child support was May 16, 2009 pursuant to Honorable Caruso's decision.   He introduced his 2011 Form W–2 showing medicare wages of $364,757.71 which include a $22,000 contribution to his retirement, the plaintiff's 2010 Federal Income Tax Return reports income of $427,804 from Eastern CT Imaging PC, $338 from Manchester Hospital and $210 from Evergreen Imaging, plus income from ECI Evergreen LLC in the amount of $18,662 for a total of $447,014.

The plaintiff's 2009 Form W–2 shows medicare wages of $493,940 including a $22,000 contribution to retirement.

The plaintiff's income was reduced from $493,940 in 2009 to $364,757.71 in 2011 or $129,183 over 2 years.   The judgment permits the plaintiff to modify alimony if his base pay plus bonus increases or decreases by 25% or in this case by $123,485.   The plaintiff met his burden, the court finds the plaintiff suffered a 26% reduction in income.

The defendant has had a significant increase in her income from 2009 to 2012 but has not exceeded the $200,000 safe harbor contained in the judgment.

ORDER MODIFICATION OF ALIMONY

The court finds it equitable that both households bear some of the burden of the reduction of plaintiff's reduced income.   Alimony should be modified by $312 (26%) and plaintiff's weekly payments shall be $890 retroactive to the day of service, January 13, 2012.

The plaintiff also requests that his child support be reduced as a result of his reduced income.   The plaintiff's and defendant's incomes place them above the maximum Child Support Guideline.   The court asked the parties to file Child Support Guidelines following the Maturo v. Maturo, 296 Conn. 80 (2010), decision by the Supreme Court.   The parties combined net weekly income is $5,020.   The parties have two minor children under the age of 18, Reed age 16 and Chase age 14.

Total child support of $4,000 weekly income is $636 per week or 15.89%. Applying the 15.89% to the excess income above $4,000 (15.89% x $1,020) equals $162 of additional child support.   The Guidelines as interpreted by Maturo v. Maturo, 296 Conn. 80 (2010), would equal total Guideline support of $798 ($636 + $162).   The plaintiff's share is 60% or $479 per week.

Honorable Alvord's decision and Judge Caruso's decisions were both written before the Maturo decision was released.   Utilizing the principals established by Judge Alvord the court would double the plaintiff's child support at the $4,000 Maximum Guideline Table.   This would result in the plaintiff paying child support of $382 x 2 = $763.

If the court computes basic child support under Maturo and doubles it as Honorable Alvord did it would result in child support of $958 per week even in the face of the plaintiff's reduced income which would be inequitable.

ORDER CHILD SUPPORT MODIFICATION

The court finds that child support computed as per the judgment does not meet the 15% change required by the Guidelines for a modification.   Therefore the court denies the plaintiff's Motion to Modify Child Support.

The defendant filed a motion for contempt (# 293) alleging the defendant failed to pay college expenses for the oldest child, failed to share extraordinary expenses greater than $500 and failed to pay his share of uncovered medical and dental expenses.   The plaintiff countered by filing his own motion for contempt claiming the defendant failed to turn over the children's UGMA accounts and failed to apply those accounts to college expenses before seeking plaintiff's contribution.   As of the date of dissolution $15,136 was in the account for the eldest child.

The plaintiff testified that the defendant and children failed to allow him to participate in the college decision making process for the two oldest children.   Despite his lack of input into college selection the plaintiff made some college payments to his credit.

ORDER COLLEGE EXPENSES

The court finds the plaintiff failed to pay his share of his oldest child's college expenses and owes $1,978 for her sophomore year, $13,229 for her junior year and $1,205 for her senior year for a total of $16,412.   The court orders that this sum be paid in full within 30 days of the date of this order so the child can graduate with her class in May 2012.

The plaintiff received the UGMA college fund accounts for the two youngest children in March of 2012 nearly three years after Judge Caruso ordered the accounts be turned over.   The plaintiff provided no explanation to the court why the accounts were not turned over pursuant to court orders upheld by the Appellate Court or why they earned no interest since the date of dissolution.   The defendant only complied with Judge Caruso's order shortly before the hearing of this matter under the threat of a contempt finding.

The defendant claims plaintiff owes her 50% of SAT tutoring for their special needs child.   She acknowledges that the court previously found the oldest child's SAT tutoring expenses not reimbursable as a result of the plaintiff's payment of child support above the maximum of the guidelines.   During cross examination the plaintiff acknowledged the child could benefit from tutoring.

ORDER REGARDING EXPENSES ABOVE $500

Given the nature of the minor child's disability the court finds the SAT tutoring reasonable and necessary to accommodate the child's special needs.   Since the expense exceeds the $500 threshold, the plaintiff shall pay 50% of the expense within 30 days from the date of this order.

ORDER REGARDING CONTEMPT

The plaintiff and defendant both filed contempt motions against the other party.   The court finds the plaintiff is in willful contempt for failure to pay his portion of college expenses for the oldest child in a timely manner.

The court finds the defendant in contempt for failing to turn over the UGMA/college funds for the children as ordered by Judge Caruso.

Given the fact that both plaintiff and defendant are willfully in contempt of court orders the court declines to order any legal fees to either party.

BY THE COURT

Abery–Wetstone, PJ

Abery–Wetstone, Holly, J.T.R.