Ernest Squatrito v. Loreen Zaccaro (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR MODIFICATION OF CUSTODY, VISITATION, “PARENTING TIME” AND SUPPORT (243);  DEFENDANT'S POSTJUDGMENT MOTIONS FOR CONTEMPT FOR PLAINTIFF'S FAILURE TO PAY (i) HIS PORTION OF THE CHILDREN'S EXPENSES AND HEALTH INSURANCE (244);  (ii) HIS PORTION OF THE CHILDREN'S UNREIMBURSED MEDICAL EXPENSES, POSTJUDGMENT (245);  (iii) THE WEBSTER BANK LINE OF CREDIT (246);  AND (iv) CHILD SUPPORT (247);  AND PLAINITFF'S OBJECTION TO DEFENDANT'S MOTIONS FOR CONTEMPT (250)

PRELIMINARY FINDINGS

The parties' ten-year marriage was dissolved by judgment entered on October 17, 2007(177), which judgment incorporated by reference an agreement of the parties (the agreement).

The parties have two children, both of whom are minors.

The agreement provided that the plaintiff had an earning capacity of $140,000 a year.   The order for child support was based on plaintiff's earning capacity and the earnings of the defendant mother (of $67,000 a year) and payable in the amount of $172 a week by the plaintiff.   He was also ordered to (i) pay 66% of the unreimbursed medical expenses of the children and of work related child care costs;  (ii) carry the medical insurance for the children;  (iii) equally share the cost of the children's extracurricular activities and camps, (iv) pay the sum of $92,414.50 to the Webster Bank Home Equity Line of Credit (Webster HELOC) within six months from the date of the judgment, and until such time as he paid the foregoing sum on the Webster HELOC, to pay $625 a month directly to Webster for application to the Webster HELOC—which amount was to pay his share of the interest due on the HELOC until the principal had been paid.

On April 28, 2009, the court, approved and ordered a modification of the judgment to provide that the defendant would carry the medical and dental insurance for the children and the plaintiff was to pay to the defendant annually an amount equal to the premium costs for such insurance (209.10).   For the premiums due for 2009, the plaintiff was to pay the same in installments and the court set compliance dates which ended on September 18, 2009.   After he made the payments for the 2009 premiums, he was thereafter to pay one-half of the annual premium by March 15th and the balance by July 15th of each year.

On September 15, 2009, the court, Dolan, J., approved and ordered a further modification of the agreement pursuant to which the plaintiff was to be solely responsible for the Webster HELOC and to indemnify and hold the defendant harmless on the same.   He further agreed to make all minimum payments required on the Webster HELOC in a timely fashion, to prevent late and other charges from being incurred, and not less than annually, to use his best efforts to obtain a loan to permit him to pay off the balance on the Webster HELOC.

Pursuant to the same order, five months after the defendant completed the refinance of her share of an indebtedness due to Webster Bank, the plaintiff's child support was automatically to be reduced to $100 a week;  the change was made “in light of the Plaintiff's current financial picture.”   The change to the child support payment was effectuated on or about February 2010.

The court conducted a hearing on the pending motions on April 3 and 18, 2013 and May 14, 2013.   Both parties were represented by counsel.   As financial matters were in dispute, the court, pursuant to Practice Book § 25–59A, ordered the financial affidavits of the parties to be unsealed.

Prior to the hearing, the parties entered into two stipulations re:  parenting (on March 4 and April 3, 2013) which resolved a portion of the plaintiff's motion to modify.

After the compliance dates ended for the payment of the 2009 health insurance premiums, the plaintiff stopped paying any portion of such premiums costs.

The amount the plaintiff has failed to pay the defendant for the children's health care insurance premiums, which amount was unchallenged, is:  2010—$1,904;  2011—$2,940;  2012—$4,356;  and 2013 through April 31, 2013—$1,652.   The total is $10,852.

The defendant was obligated to provide the plaintiff with a monthly statement of the amount of unreimbursed expenses and an annual statement of the cost of the health care.   She testified she did so for the first few years and then she provided annual statements of the unreimbursed medical expenses.   The credible evidence is that she sent spread sheets of the expenses and copies of back up documentation.   The further credible evidence is that she stopped asking for the amounts due on a monthly basis because the plaintiff had stopped paying and it was pointless to ask for the same repeatedly;  the annual reconciliation statements went unpaid as well.

The amount due from the plaintiff for the unreimbursed medical expenses (i.e., the 66% of the total of the unreimbursed health care costs), which amount was unchallenged, is as follows:  2010—$4,153;  2011—$3,668;  2012—$3,654 and for 2013 through March 31, 2013—$670.   The total is $12,146.

The defendant testified credibly that she provided the plaintiff with statements of the amount due for his share of extracurricular activities, camps and work related child care.   Despite the plaintiff being obligated to pay 66% of the work related child care, the defendant asked the plaintiff for 50% of the total of all such expenses in a futile effort to get him to pay the same.

The amount due from the plaintiff (at 50% of the total) for all of the children's extracurricular activities, camps and work related child care, which amount was not challenged, is as follows:  2010—$0;  2011—$695;  2012—$633;  and 2013 through March 31, 2013—$117.   She is still willing to accept the lesser amount.   The (reduced) total due from the plaintiff is $1,446.

The defendant after the dissolution refinanced the marital home and paid off her share of the indebtedness ($70,000) to Webster Bank. All that remains of such debt is the share the plaintiff was obligated to pay on the Webster HELOC.

The plaintiff filed bankruptcy in 2011 and the defendant was then forced to become responsible for making the payments on the Webster HELOC in order to maintain the home for herself and the parties' children.   The obligation of the plaintiff to reimburse the defendant for amounts she has to pay to Webster survived his bankruptcy as the payments were characterized in the judgment as being in the nature of support and not dischargeable in bankruptcy.

Since August 2011, the defendant has been paying $200 a month on the Webster HELOC.   The amount the plaintiff owes to the defendant as a result of such payments, which amount was not challenged, is as follows:  August 2011 through December 2011—$1,966;  2012—$2,400 and 2013 through April 2013—$800.   The total is $5,166.

The defendant has also failed to pay child support in the following amounts (which amounts were unchallenged):  2010—$510;  2011—$5,200;  2012–$5,200 and for 2013 through April 5, 2013—$1,400.   The total due is $12,300.

Since December 2010, the plaintiff has paid nothing on behalf of his children—no child support or contribution to the cost of their insurance premiums or to the cost of the unreimbursed medical expenses, extracurricular activities or camps.   He has failed to make payments against the Webster HELOC.

The plaintiff is a board certified physician;  he is certified in family practice and in osteopathic manipulation.

Prior to the divorce the Department of Public Health held a hearing and issued a decision as a result of complaints filed by a few patients.   He completed all requirements imposed on him five years ago and is now in good standing.

He continues, however, to aver that he is unable to obtain a position due to such events.   The court is not convinced.

He maintained a family practice for a time after the dissolution.   On or about October 2009, he claims to have discovered that an employee had embezzled funds from his business—about $1,000 a week for over two years.   The charges against the employee were nolled.   He owed money to his office computer system and he claims to have been unable to pay the same.   The computer firm took out the hardware and software and the plaintiff thereafter shut down his practice on or about December 2010.   He transferred patients to a medical group with an “understanding” that he would be working for them part-time.   It did not pan out.

He testified that since 2011 and until he opened his own practice again on or about August 2012, he made twenty-seven applications for employment.   He received no offers of employment.   He did not look outside of the medical field.

He has given up the family practice and opened a “micro” office doing only manipulations.   He has no staff;  his mother does his books.   He has only recently started marketing the practice to his prior patients.

The court does not find that he has diligently applied himself to finding another position and/or to growing his own practice.   Twenty-seven applications over a period of approximately twenty months do not constitute a diligent search for work.

He lives with his mother.   She has loaned him approximately $35,000—only $14,000 of which is reflected on his financial affidavit as a loan.   She has permitted him to use paid credit cards and paid the bills for him.

In 2010 his mother paid accountant and attorneys fees bills for him in the approximate amount of $8,700.   He paid her back by making payments in August and October 2010.   At the time he paid her back the money, the plaintiff owed the defendant money for his portion of the unreimbursed medical bills and for the health insurance premiums.

The bank accounts of the plaintiff admitted into evidence consistently reflect a positive month end balance over the period of July 2010 (when the account was opened) through March 2013.   The testimony of the plaintiff that the positive balance was there to be absorbed once pending transactions were processed is not borne out by an examination of the statements which reveal that after pending payments were made, there continued to be a positive balance—albeit oftentimes a pretty insignificant balance.

Filed on April 6, 2010 together with the proposed orders of the plaintiff (which were filed in connection with then pending motions) was an unsigned, uncertified financial affidavit of the plaintiff (237).   It reflects weekly income of $100 a week.   The file does not reflect a financial affidavit having been filed by the plaintiff at the time the child support order was reduced to $100 a week.   The date of the only relevant financial affidavit on file before the September 2009 modification is the affidavit of October 17, 2007—which is the affidavit that was filed at the time of the judgment and such statement has a gross weekly income of $452.

While there may have been a change of income, the court finds there is no change in earning capacity.

It is clear that the plaintiff has not leveraged or maximized his earning capacity at any time since the dissolution of the marriage.

In fact, the plaintiff's current financial affidavit reflects a gross weekly income of $446 at this time.   He has improperly deducted from such amount, “professional insurance, telephone, storage/records, supplies, misc.” to arrive at a negative net income of ($101) a week.

The plaintiff's financial condition has not varied significantly from the time of the entry of the orders of the court—at which time he willingly agreed to make the payments set forth above.   He has chosen not to find a way to meet his obligations to his children.   Certainly a man with the education and abilities of the plaintiff, at his age and with fair to good health (as there was no evidence of an adverse health condition) is (and has been) able to obtain a position that pays more (or at least equal to) minimum wage.   He has chosen not to do so.   There was no expert testimony to provide the court a psychological, physical or legal reason for his inability to work and generate income at or near his earning capacity.   The recent opening of his business may constitute a nascent recognition of his obligations—but the belated entry back into the work force and the concomitant delay in marketing the same does not cure his failure to pay what is (and has been) due.

“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).

“In marital dissolution proceedings, under appropriate circumstances the trial court may base financial awards on the earning capacity rather than the actual earned income of the parties when, as here, there is specific evidence of the defendant's previous earnings.   It is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in his field.”  Hart v. Hart, 19 Conn.App. 91, 94–95, cert. denied, 212 Conn. 813 (1989) (internal citations omitted).

In Miller v. Miller, 181 Conn. 610, 611–12, (1980), the defendant argued that it was improper to impute an earning capacity to a party in the absence of a finding that the defendant willfully depleted his earnings with a view toward denying or limiting the alimony to be paid to his wife.   The Supreme Court disagreed:  “Our cases indicate that it is permissible to utilize a party's earning potential in making financial awards where, as here, the earnings of that party are voluntarily depleted so as to deprive the spouse of financial support.”  Miller v. Miller, 181 Conn. 610, 612–13 (1980).

“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.”  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).   Although the court may not find a party to be in contempt, the court may exercise its remedial discretion and issue orders to ameliorate the situation.   See Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

The court finds that there has been no substantial change in circumstances since the last order of child support was entered.

Further, and alternatively, the court finds that even if the plaintiff was attributed a minimum wage of $330 a week gross, his net income would be $277 a week (assuming he is self-employed).   The defendant's gross and net weekly income is $1,616 and $1,039, respectively.   Based on the actual income of the defendant and the minimum wage earning capacity of the plaintiff, the presumptive child support under the guidelines would be $92 a week.   The variance from a $92 a week order and the current order is less than a 15% variance and the plaintiff has not rebutted the presumption that there has been no material or significant change in circumstances.

The court also finds that the plaintiff's mother has made recurring gifts to the plaintiff which the court fairly attributes to the plaintiff as additional income.   A court may find that consistent and recurrent gifts in the past are likely to continue into the future and a court may consider those sums in fashioning its financial orders.  Lusa v. Grunberg, 101 Conn.App. 739 (2007).

The court finds that the plaintiff has elected to repay sums due to his mother in lieu of paying his portion of the unreimbursed medical costs for his children.   The court further finds the plaintiff has willfully restricted his income and elected to pay expenses other than those payable for his children.   See Legnos v. Legnos, 70 Conn.App. 349 (2002).

FINDINGS AND ORDERS

1. The plaintiff's motion for modification (243) in so far as it seeks a modification of the financial orders is denied.¹  He is to continue to pay child support at the rate of $100 a week for the two children.   Said payment is due every Friday.   The plaintiff is to continue to pay 100% of the children's health insurance premiums, which is currently in the amount of $413 a month;  said payment is due on the 1st of every month.

The obligation to pay 66% of the unreimbursed medical expenses on an ongoing basis and 50% of the children's extracurricular activities and camps is reaffirmed.

2. The defendant's motions for contempt for the plaintiff's failure to pay:  (i) child support (247);  his portion of unreimbursed medical expenses (245) and of extracurricular activities and health insurance (244);  and (iii) the Webster HELOC (246) are granted.

The court finds the orders setting forth the plaintiff's obligations are clear and unambiguous.   As to the order for child support and the unreimbursed medical expenses the court finds the plaintiff had the ability to pay the same (or at least part of the same).   In addition, as to his child support and all of his obligations, including without limitation, the Webster HELOC, the plaintiff willfully restricted his income and then chose not to pay any of the same.   The plaintiff did not prove that his failure to pay was not willful.   The plaintiff is in contempt.

The court, Carbonneau, J., on April 3, 2012, ordered and approved the stipulation of the parties with respect to the plaintiff's parenting time with the children.

As to the child support arrearage, the plaintiff is to pay the sum of $20 a week towards the current arrearage of $12,900—the plaintiff's weekly child support amount is $120 a week ($100 a week current support and $20 a week towards the arrearage).

The court finds an arrearage for the remaining categories of expenses payable by the plaintiff as follows:  (i) as to unreimbursed medical expenses, the sum of $12,146.95 (through March 31, 2013);  (ii) as to the extracurricular activities and camp, the sum of $1,446 (through March 31, 2013);  (iii) as to the health insurance premiums, the sum of $10,852 (through April 30, 2013);  (iv) as to the Webster HELOC, the sum of $5,366.68 (through April 30, 2013).

The court has carefully considered the request of the defendant for a lump sum payment of the arrearages in the near future.   The court, in an effort to have the plaintiff begin to meet his current obligations, declines to enter such an order at this time.

The plaintiff is to make current payments when due of the foregoing expenses in accordance with existing court orders.

3. The plaintiff is to pay attorneys fees to the defendant for the prosecution of all of such motions in the amount of $7,500.   The plaintiff is to pay the sum of $250 on or before June 30, 2013, $250 on or before September 30, 2013, $250 on or before December 31, 2013, $250 on or before March 31, 2014 and the balance on or before June 30, 2014.

4. The following dates are set for compliance:  July 9, 2013;  October 8, 2013 and January 7, 2014.   If the plaintiff is in full compliance with the orders of the court as set forth above, i.e., he has paid current payments when due and the payment of counsel fees when due, then the attendance of the parties and counsel is excused.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. The court, Carbonneau, J., on April 3, 2012, ordered and approved the stipulation of the parties with respect to the plaintiff's parenting time with the children..  FN1. The court, Carbonneau, J., on April 3, 2012, ordered and approved the stipulation of the parties with respect to the plaintiff's parenting time with the children.

Olear, Leslie I., J.