Leilah Sebadduka v. Musa Sebadduka (2013)

Memorandum of Decision on State of Connecticut/Plaintiff's Motion for Contempt (128);  and Defendant's Motion for Contempt Regarding Children and Real Property–Postjudgment and Motion to Modify Custody and Child Support–Postjudgment (132 and 133)

Procedural History and Preliminary Factual Findings

The parties' ten-year marriage was dissolved by judgment entered on February 26, 2008.   The judgment incorporated by reference a Separation Agreement of even date (agreement).

The parties had four children:  Tariq, Amir, Moussa and Sinani.   Pursuant to the agreement, the parties continued to share joint legal custody.   The children's primary residence was placed with the plaintiff and the defendant enjoyed liberal and flexible parenting time.   Pursuant to Section 3.2 of the Agreement, “n]either party shall allow any of the children to travel to Uganda for the next three (3) years, and after that period of time, neither shall allow the children to travel to Uganda without a prior order of the court.”

Under section 4.1 of the agreement the defendant was to pay child support at the rate of $300 a week.

Pursuant to sections 9.3 and 9.4 of the agreement, the defendant was to quit claim his interest in the marital home at 37 Meakin Drive, Windsor to the plaintiff.   As of March 1, 2008, the plaintiff was responsible for paying the mortgage and other property expenses.   She was further obligated to refinance the mortgage, which was only in the name of the defendant, by February 26, 2009 to remove his liability thereon.   In the event the plaintiff failed to refinance the indebtedness by February 26, 2009 or if she paid any installment on the mortgage more than thirty days after the due date, the property was to be listed for sale.   The court retained jurisdiction over the sale.

The court held a hearing on the pending motions on April 25, 2013.   Both parties appeared and were represented by counsel.   As financial matters were in dispute the court ordered the unsealing of the financial affidavits.   The court further took judicial notice of the court orders in the above referenced file and in the case of Wells Fargo Bank, NA v. Sebadduka, Musa P. et al in docket number HHD–CV09–5028917–S.

At the conclusion of the hearing, the court issued a temporary order suspending the child support payments of the defendant.

Additional Factual Findings

The children of the parties are citizens of the United States and they were born in Connecticut.   The defendant father has lived in the State of Connecticut since the date of the dissolution.   The court continues pursuant to the provisions of General Statutes § 46b–115l to have exclusive continuing jurisdiction over the custody of the children.

The plaintiff and children left Connecticut in December 2008 and moved to Silver Spring, Maryland ostensibly to visit family members.   Two weeks after arriving in Maryland, she told the defendant she was not returning.   The defendant continued to regularly visit the children while they were in Maryland.   He paid child support directly to the plaintiff during that time.

The plaintiff failed to pay the mortgage on the marital home.   Despite being more than thirty days in arrears, the house was not placed on the market.   She also failed to refinance the mortgage by February 26, 2009 and yet she still did not place the home on the market.   The defendant moved back into the marital home in the spring of 2009.   A foreclosure was initiated.   A judgment of foreclosure was entered September 13, 2010.   Motions to open the judgment and extend the law day were filed and granted, until the denial on June 13, 2011 by the court, Satter, J.T.R., of the last motion so filed.   After the filing of several motions to delay the order of ejectment, an execution of ejectment was issued by the court on November 10, 2011.

On June 16, 2010, the plaintiff and the children went to Uganda—they went despite the order of the court prohibiting such travel.   The defendant knew about the trip;  he paid for the ticket to Uganda.   He testified that the parties had an agreement the plaintiff was obligated to pay for the return ticket as the cost for such flight was less expensive than the flight to Uganda from the U.S. It was never explained why a round trip ticket was not purchased and the cost thereof shared.   The plaintiff testified that there was no agreement on her paying for any portion of a return ticket.

The defendant maintains that he believed the children were going to visit only for the summer of 2010.   In August 2010, the plaintiff told the defendant that she and the children were not coming home.   He testified that she demanded he provide them with accommodations if he wanted to be able to see the children.   The plaintiff and the children stayed for approximately three months with the defendant's sister and then he provided accommodations for them in an apartment building situated on land owned by his family.   For 2010, he continued to send child support directly to her for the children.

In 2010 the children lived with the plaintiff and attended school.

In 2011, the plaintiff enrolled the children in boarding schools.   The court does not find credible the assertion of the plaintiff that the defendant knew the identity of the schools in which she enrolled the children.

The defendant claims that he sent to the plaintiff by money gram approximately $20,000 in 2011 and $5,000 for the period January through May 2012.   She denies it.   The court finds the defendant's testimony to be the more credible on this point.

In April or May 2012, the defendant went to Uganda for his sister's funeral.

The plaintiff was still living in the apartment he had provided for the family.   While he was there he was only able to see the youngest child, Sinani.

The plaintiff then moved.   He claims he did not know where she was living—she denies that.   The defendant acknowledges that he stopped paying child support after May 2012.   As it turns out, she moved back to the United States in May 2012, but she left the children in Uganda.   The plaintiff testified that the children stay with her mother (the maternal grandmother) while they are not in boarding school.

The court finds it credible that she did not advise the defendant that she had returned and that he learned of her return when she filed a claim for child support through support enforcement and he received notice thereof.

The plaintiff had not divulged to the defendant the name, location or telephone numbers of the schools attended by the children;  she did so only when ordered to do so by the court, Prestley, J., at a hearing on February 5, 2013 (order 135).   The court further ordered the plaintiff not to leave the country until the pending proceedings have been resolved.

The defendant is not agreement with the schools in which the plaintiff has enrolled the children.   He wants them returned to Connecticut and seeks sole custody.

She also said she would like the children to return to the U.S. but she cannot afford to pay the cost to get them here.

The defendant did not file for a modification of child support until January 11, 2013 despite learning she was in Connecticut in the late summer of 2012—he testified he did not know where she was living.¹

The testimony of the plaintiff that she could not recall how much she paid in Uganda shillings for the tuition, room and board for the children in 2011 and 2012 was not credible.   For the current academic year, she testified that she was paying $2,200 a term (and there are three terms during the academic year) for the three children that attend the Lukmon school, or $6,600 in U.S. currency.   The Emirates school attended by the oldest child is $800 a term or $2,400 a year in U.S. currency.   The total she would then be paying for the tuition, room and board for the four children for the current academic year would equal approximately, $9,000 a year.   The court makes the reasonable inference that airfare for the four children would be less than $9,000.

The plaintiff's current financial affidavit reflects she is paying for the children the following amounts on a weekly basis:  $173 for tuition, $23 for uniforms, $200 for food and $50 for “act.”   The total of such amounts is $446 a week or $23,192 a year.   Her current weekly earnings are $924 a week gross and $819 a week net or $48,048 gross and $35,217 net annually.

There was no testimony that she was working and earning money while she was in Uganda and or of the source of funds to pay the tuition for 2011 and 2012 although her financial affidavit reflects having “children's Visa debts” of $8,000 (which amount is less than one year's tuition, room and board according to her testimony).

At the initial hearing on the Application for Contempt Order, Income Withholding and/or Other Relief signed August 24, 2012 and filed November 5, 2012(128), Magistrate Gillman, based solely on the affidavit of debt filed by the plaintiff, found a total balance of child support due to be $26,100.   At such hearing, counsel for the defendant requested a special hearing to provide time for the defendant to dispute such balance by introducing additional evidence including proof of transfer of funds to the plaintiff while she was in Uganda.²  The court granted the continuance and ultimately the matter was referred to the Superior Court for the special hearing on April 25, 2013.

A representative of support enforcement testified at the April 25, 20113 hearing on the pending motions.   The initial testimony of the support enforcement worker at the hearing was that the total amount of child support determined to be due for 2011, 2012 and 2013 was, as of April12, 2013, $31,475.

On cross examination, however, the numbers and accounting became much murkier.   Ultimately, it was determined (after a good deal of confusing and seemingly contradictory testimony by the witness) that there was as of April 19, 2013:  $5,575 due as “current support” and $23,100 in arrears for a total of $28,675.   Included in the arrearage are support payments for 2011, 2012 and year to date for 2013, after credit by support enforcement for some payments made during 2012 and 2013.

Applicable Law and Conclusions

“In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263 (1995).   “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14, (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful (sic)” Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54, (1986) (sufficient factual basis to explain plaintiff's failure to obey order).   However, “even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988) (court still required to hold evidentiary hearing to support such orders);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

As to motion 128:  The court finds a valid, clear and unambiguous court order for the payment of child support at the rate of $300 a week.

The court credits the defendant's testimony that he paid approximately $20,000 to the plaintiff in 2011 and $5,000 in early 2012.   The arrearage claimed by the plaintiff for 2011 is $15,600.   The court finds that the payments made by the defendant are to be credited against such claimed amount and that no amount of child support is due for 2011.   For the period of January 1, 2013 though the end of May 2013, there were twenty-two weeks.   The child support due for such period would be $6,600 (22 x $300).   After giving credit to the $5,000 the court finds the defendant paid, a balance of $1,600 remains.   For the remainder of 2012 there were thirty weeks and from January 1, 2013 to the date of service of the motion to modify child support (January 15, 2013) there were two weeks.   For such thirty-two-week period, child support was due in the amount of $9,600 (32 x $300).   A total arrearage of child support in the amount of $11,200 is found.

Court orders are to be followed until modified or terminated.  “It is elementary that court orders must be complied with until they are modified by a court or successfully challenged.”  Eldridge v. Eldridge, 244 Conn. 523, 530 (1998).

The defendant failed to pay the child support when due.

The court does not find the non-compliance to be a willful violation of the court order.

The motion for contempt is denied.

The defendant continues to owe the arrearage and the court orders that payment in the amount of $60 a week continue to be made in reduction of such amount.

As to motion 132:

The court finds the agreement, as ordered by the court, is clear and unambiguous and that the children were not to travel to Uganda for three years or thereafter without a court order.

While the court makes the reasonable inference that, at some time, there was an agreement of the parties that the children would go to Uganda for some time, the court does not find that there was an agreement that the children would be placed in boarding schools not approved by the defendant or that the children would be left in Uganda after the plaintiff returned to the U.S. The court finds the plaintiff left the children in Uganda without either parent being present or available to the children and further that the defendant had no way of reaching the children or knowing where they were.   Such actions are inexcusable and contemptible.

Further, the plaintiff failed to pay the mortgage on the marital home, to refinance said mortgage and to list the home for sale all as required by the mortgage.   The orders for her to do all of the above are clear and unambiguous.   She willfully failed to comply with the court orders.

The plaintiff willfully violated clear and unambiguous court orders and she is in contempt.   The motion is granted.

As to the motion 133:

In modifying custody the court must either find a material change of circumstances or that the order sought to be modified was not in the best interest of the child.  Kelly v. Kelly, 54 Conn.App. 50, 55–56 (1999);  Hall v. Hall, 186 Conn. 118 (1982);  see also Kennedy v. Kennedy, 83 Conn.App. 106, 114, cert. denied, 270 Conn. 915 (2004) (finding that the joint custody arrangement was no longer in the best interest of the children).  “The burden is on the party seeking modification to show the existence of a substantial change in circumstances.”  Jaser v. Jaser, 37 Conn.App. 194, 204 (1995);  Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992);  see also Walshon v. Walshon, 42 Conn.App. 651 (1996) (dismissing plaintiff's motion for modification for failure to make out a prima facie case of a material change in circumstances).

It is clear that there has been a substantial change in circumstances as the children are living in Uganda while both parents are residing in Connecticut.   When not in school, they are staying with the maternal grandmother.   The court does not find such circumstances to be in the best interest of the children.

After considering the factors of § 46b–56, the court finds that it would be in the best interest of the children to change the custody of the children from the plaintiff mother to the defendant father until the return of the children and further order of the court.

The motion is granted.

Orders

1. The defendant is ordered to pay $60 a week toward the arrearage of child support of $11,200.

2. The plaintiff is ordered to have the children returned to the State of Connecticut not later than June 15, 2013.   The plaintiff is responsible for the cost of the return to the children.   The plaintiff is not to leave the State of Connecticut without a further order of the court or until the children are returned to Connecticut, whichever first occurs.

3. Sole custody of the children is placed in the defendant father.   The plaintiff mother shall have flexible and liberal parenting time as agreed upon by the parties.   The defendant is to cooperate and assist the plaintiff in having the children returned to Connecticut.   In the event the defendant pays for the air fare, he is to offset the cost thereof against the child support arrearage.

4. The court terminates the defendant's child support payments as of January 15, 2013—the date of service of the motion.

SO ORDERED.

Olear, J.

FOOTNOTES

FN1. The court finds such claim credible as his counsel at the initial hearing on contempt filed by support enforcement on November 28, 2012 asked the Magistrate if the plaintiff's address could be provided.   For the Record (FTR) 90 Washington Street, Courtroom A–2, November 28, 2012 10:25:59 a.m..  FN1. The court finds such claim credible as his counsel at the initial hearing on contempt filed by support enforcement on November 28, 2012 asked the Magistrate if the plaintiff's address could be provided.   For the Record (FTR) 90 Washington Street, Courtroom A–2, November 28, 2012 10:25:59 a.m.

FN2. FTR 90 Washington Street Courtroom A–2 November 28, 2012 10:22:40 a.m..  FN2. FTR 90 Washington Street Courtroom A–2 November 28, 2012 10:22:40 a.m.

Olear, Leslie I., J.