Alyssa Oppedisano v. Gary Oppedisano, Jr. (2013)

MEMORANDUM OF DECISION

The parties were divorced in July of 2009.   There are three minor children issue of the marriage, Katelyn Oppedisano, born on July 20, 2002;  Alexander Oppedisano, born on September 29, 2005;  and Christopher Oppedisano, born on May 10, 2007.   At the time of the divorce, the Defendant was earning $65,000 a year and the Plaintiff was earning approximately $97,000 per year.   The parties agreed that the Defendant would pay child support in the amount of $215.00 per week in accordance with the guidelines, plus 33% of childcare expenses, for a total support obligation of $365.00 per week.

The Defendant works for his father's heating and air conditioning company as a W–2 employee.   He claims that sometime subsequent to the divorce, the family business began to suffer, and he filed a Chapter 11 Bankruptcy petition.   The Defendant was no longer able to collect a salary but instead began collecting unemployment benefits the week of March 2010.   Defendant testified that his brother also obtained unemployment benefits at this time.   Defendant continued to work for the company without compensation during the time he was drawing unemployment benefits.

Defendant's unemployment compensation of about $27,000 a year was not enough to support himself and pay the child support order.   He testified that he did not receive money from any other sources during this time, other than some loans from his father.   He also testified that he did look for alternative employment during this time, but was unable to find work due to the state of the economy and his unique employment skills.   He stopped looking once the company could afford to start paying him a salary in January 2012.

On July 12, 2010, the Plaintiff filed a Motion for Contempt.   This motion was heard on August 5, 2010.   Defendant claimed he could not afford an attorney and both parties came to Court unrepresented.   Neither parties filed financial affidavits.   Subsequently, through discovery it was determined that the Plaintiff's income had increased by over $60,000 to $157,000 per year, while the Defendant was earning $35,000.00 per year.

At the August 5, 2012 hearing there was no calculation made nor presented to the Court on what the parties obligations were pursuant to the Child Support Guidelines and the $175.00 was basically an arbitrary figure.   A recalculation of the Child Support Guidelines in effect at that time, based on the parties' income required him to pay $103.

The Defendant had filed a motion for modification on December 1, 2010.   Defendant testified that his Motion to Modify was never heard until the recent proceedings because the Plaintiff and her lawyer repeatedly asked for continuances of his motion for modification.

Plaintiff's attorney filed twelve reclaims for the Defendant's motion between January of 2011 and March of 2012.

In March of 2012, Plaintiff had filed another Motion for Contempt;  seeking the difference between the original $365 a week child support order and the $175 a week order.   Defendant's Motion for Modification was not heard because the Plaintiff requested continuances from January of 2011 to March of 2012, a period of 14 months.

There are two motions for contempt before the Court filed by the Defendant, one for Plaintiff's failure to pay her share of the parties' joint Disney Credit Card debt, and one for her refusal to provide the Defendant with the names of treating providers of the parties' minor children.   He also is asking the Court to consider two Motions for Order, the first with respect to the Plaintiff's child care expense, and the second requesting the right of first refusal to parent the children when the Plaintiff is unavailable.   Defendant also asks the Court to consider his Motion for Contempt for the Plaintiff's failure to comply with discovery orders, as well as other claimed litigation misconduct.

Defendant testified that Plaintiff parents the children 20 days out of every month.   On school days Plaintiff has her mother watch the children after school, usually from 3:30 pm until 6:00 or 7:00 pm, at a rate of $450.00 a week.   Plaintiff did not controvert this testimony.   Defendant testified that he works from home every afternoon, and can parent the children after school every day, and is willing and able to care for the children every day after school on Plaintiff's parenting days until the Plaintiff can pick them up.   He further testified that the parties respective residences and school are within a three-mile radius of each other.   His mother is available to assist him watch the children, as she had been at one time the primary day care provider for the children.

Neither party currently communicate, but defendant testified he was willing to communicate with the Plaintiff.

The Plaintiff has refused to provide defendant with the names and contact information of the children's healthcare providers, and has excluded him from decision-making as to the children's healthcare.   During the marriage he generally took the children to the doctor.   The parties' eldest child is ten years old.   Defendant cannot take the children to see the dentist because the Plaintiff refuses to provide with him with their insurance cards.

The Defendant also claims that the Plaintiff does not offer him the right of first refusal when she is out of town, and that she leaves the parties' ten year old daughter alone overnight with her boyfriend while traveling for work.   Defendant also testified that the Plaintiff has refused to pay her 1/3 share of the parties' joint Disney credit card debt as provided for in the parties' Separation Agreement.

He claims that child support obligation should be suspended but the Court finds this is unwarranted.

Defendant claims that any child support order entered to be retroactive to December 1, 2010, when he initially filed his Motion for Modification.   Defendant's motion was never heard because the Plaintiff's attorney requested a continuance almost every time the motion was scheduled.   The Plaintiff's attorney filed 12 reclaims of Defendant's Motion for Modification from December of 2010 of March of 2012.   See Cannon v. Cannon, 109 Conn.App. 844 (2008) (affirming trial court's decision to retroactively modify alimony and child support based on a motion that had been pending for three years).   Unless the Court were to enter some form of retroactive modification the Plaintiff would unfairly benefit from her own delay.   The defendant also seeks to suspend his obligation to contribute to childcare.   The Plaintiff pays her mother $450 a week to watch the children only on school days and only from 7:00 AM to 8:20 am and 3:30 PM to between 6:00 PM and 7:00 PM. She travels for work overnights on Wednesdays when the Defendant is parenting the children.   Plaintiff's mother watches the children for four hours a day, seven days out of a two-week period, for which she is being paid approximately $32.00 an hour.

The Defendant testified that he is available to parent the children every day after school, which would cost the parties nothing, and testified that his mother would also be willing to watch the children at no cost.   It is unfair to require the Defendant to contribute to costly childcare expense.

The Defendant seeks to parent the children every day after school, as he believes it would be in the children's best interest to be with their father as opposed to their grandmother.   If the Plaintiff's mother is allowed to continue to be the childcare provider, the Defendant seeks an order suspending his obligation to contribute to this childcare expense.

MOTIONS FOR CONTEMPT

a. Disney Credit Card

The Parties' Separation Agreement states as follows:  “Chase (Disney Credit Card);  $22,400 balance—to be paid one-third (1/3) by the Wife and two-thirds (2/3) by the Husband.   The wife's share of $7,466 plus 8% interest per year shall be paid from the proceeds of the house.”   The Defendant testified that their former marital residence was sold on March 26, 2010, and the proceeds are held in escrow.   Since that time, the Plaintiff has willfully and intentionally refused to pay her share of the Disney credit card balance, which at the time of the hearing totaled $9,555.50 with accrued interest.

Plaintiff argues there was a dispute as to what was to be done with the proceeds from the sale of the house and she wanted it all to be dealt with at the same time.   Plaintiff has already received a significant disbursement from the proceeds.   Plaintiff testified that she never refused to authorize payment, although she sent an email to the closing attorney approximately five months after the house was sold refusing to authorize payment directly to the credit card company.   The defendant seeks an Order from this Court authorizing release of funds to pay off the credit card debt from the Plaintiff's share of the proceeds, an Order from the Court holding the Plaintiff in Contempt for her failure to comply with this provision, and attorneys fees.

b. Children's Doctors' Appointments

In October of 2010, the parties entered into an agreement, made a court order, requiring the Plaintiff to notify the Defendant of all the children's doctor appointments.   The Court finds that the Plaintiff has willfully and intentionally refused to inform Defendant, in violation of the above order, of the children's doctors' appointments or the identity of their medical providers.   Their eldest child Katelyn suffers from Crohn's disease, and as a result has faced life-threatening situations.   Defendant testified that at one point his daughter required surgery.   The plaintiff did not notify him until after the surgery.

The children are on Plaintiff's insurance policy, but she has refused to provide Defendant with their insurance information so he could take the children to the doctors or the dentist.   Defendant also testified that the children are five, six and ten years old, and have never seen a dentist.   He has asked the Plaintiff for the insurance cards and was assured that he would receive them.   Plaintiff also testified at the December 4, 2012 hearing, that she would provide the Defendant with the insurance cards.   Plaintiff has never provided Defendant with the cards.   Defendant seeks an order from this Court holding the Plaintiff in contempt for her willful failure to comply with the parties' agreement, and for attorneys fees associated there with.

c. Right of First Refusal

The Plaintiff refuses to offer the Defendant a right of first refusal to parent the children when she is unable to parent them.   The Defendant testified that the Plaintiff frequently travels for work, and instead of offering him the right of first refusal, often leaves the kids with her mother.   He also testified that she has even left the parties' 10 year-old girl alone overnight with her current boyfriend.   The Defendant has been willing and able to watch the children whenever the Plaintiff travels, and he claims it is in the best interest of the children to be with their father when their mother is unavailable.   The Defendant seeks the right of first refusal to parent the children when the Plaintiff is unavailable.

The Defendant also seeks attorneys fees as related to discovery request.   He claims the Plaintiff required him to make unnecessary court appearances, cancelled a deposition, and failed to attend Court on November 28, 2012, when the Court began receiving evidence on the present motions.

Despite Defendant's repeated request, Plaintiff failed to produce any evidence of her income until July 2011, eight months after the Defendant had filed his Motion for Modification, finally requiring Defendant to subpoena the information.   Plaintiff did not produce a single document in response to Defendant's original May 2, 2012 discover request until August 13, 2012.   Defendant's counsel was required to draft a Motion to Compel, which was granted on August 13, 2012 (Wolven, J.), A Motion for Contempt, and correspondence to the Plaintiff's attorney to obtain compliance.   Plaintiff did not fully comply with discovery until October 22, 2012, two days before the hearing date.   She failed to produce records from certain savings accounts as well as credit card statements she held jointly with her father.

ORDERS

The Court enters the following orders:

1) Pursuant to the Child Support Guidelines based on the affidavits submitted by the parties the Defendant was required to pay $103.00 per week from August 5, 2010.   This order shall remain in effect until further order of the Court.   There is no support arrearage prior to the August 5, 2012 date.   No deviation from the $103.00 is warranted.

2) The Defendant shall have the right to parent every day after school instead of paying ongoing child care cost, which is based on a deviation based on special circumstances;

3) The balance due on the Disney credit card which is $7,466.50 shall be paid forthwith by the plaintiff;

4) The Plaintiff shall comply with the parties' agreement requiring her to inform the Defendant of the children's doctors' appointments, as well as an Order compelling her to immediately provide the Defendant with the children's medical and dental insurance cards;

5) The Defendant shall have the right of first refusal to parent the children when the Plaintiff is unavailable to do so;

and

6) The Plaintiff shall pay attorneys fees in the amount of $4,500 plus any out of pocket expense incurred by defendant's counsel.

Counsel is currently holding a balance of $16,582 in escrow from the proceeds of the sale of the marital residence, and each party is currently entitled to $8,291.00 from same.   Said sums shall be forthwith disbursed after the payment of $7,281.50 to the plaintiff.

Plaintiff claims she is owed $7,281.50 for foreclosure costs that were incurred as a result of the Defendant's inability to pay the mortgage and plaintiff shall be paid said sum pursuant to the order herein relating to the escrow balance.

By the Court,

OWENS, J.T.R.

Owens, Howard T., J.T.R.