John Pitarra, Jr. v. Carla Pitarra (2013)

ORDER Re Defendant's Motion for Contempt (No. 113.00) and Defendant's Motion for Modification (No. 114.01)

On June 19, 2013, the court conducted an evidentiary hearing on the defendant's motions for contempt and modification, at which time the defendant appeared and presented evidence, but the plaintiff did not appear.   The plaintiff had notice of the hearing date as evidenced by his June 17, 2013 Motion for Continuance seeking a postponement of the June 19th hearing date.   The Motion for Continuance was denied on June 18, 2013.

The defendant alleges that the plaintiff:  (1) failed to pay child support and alimony on April 26, 2013;  (2) fails to pay child support and alimony consistently on the Friday of each week and unilaterally withholds money from such payments;  (3) failed to pay one-half of the expenses incurred for the minor children's extracurricular activities;  (4) fails to pick-up the minor children at 5 p.m.;  (5) fails to provide timely notice of the due date for her payment for the parties' Ravens tickets;  and (6) failed to remove her name from the title and mortgage of the Maryland property.

After consideration of the evidence presented at the hearing, the court finds as follows:

1. On June 14, 2011, the court entered a divorce judgment which incorporated by reference a Settlement Agreement/Stipulation to Judgment executed by the parties.

2. Alimony and Child Support Payments.   Paragraph 5.1 of the Agreement provides that the plaintiff shall pay to the defendant alimony in the amount of $157.07 a week from the date of the divorce.   Paragraph 6.1 of the Agreement provides that the plaintiff shall pay to the defendant child support in the amount of $316.00 per week, with the first payment commencing on the Friday of the first week after dissolution is granted.   The plaintiff is not in arrears in making alimony and child support payments;  however, the plaintiff has been inconsistent in making such payments on the Friday of each week.   The Agreement does not specify the day of the week that the plaintiff is to pay alimony to the defendant, nor does it expressly state that child support payments, other than the first payment, are to be made on the Friday of each week.   Due to this lack of specificity in the court's order, the court does not find the plaintiff in contempt for failure to pay alimony and child support on Friday of each week.

3. Extracurricular Expenses.   Paragraph 6.2 of the Agreement provides that the parties shall contribute equally to the cost of extracurricular activities upon which they agree, and that the parties shall exchange quarterly statements of such expenditures to obtain reimbursement.   The Agreement provides further that if one party owes the other based upon such accountings, the amount owed shall be paid within one week of the exchange of the accounting.   The defendant has incurred expenses for extracurricular activities for the parties' minor children for which she has not been reimbursed by the plaintiff;  however, the defendant did not sustain her burden of proving that the parties had agreed upon the extracurricular activities in the first instance or that she submitted a quarterly invoice to the plaintiff seeking reimbursement for such expenses.   The parties' initial consent to incur the expenses and their obligation to exchange quarterly statements seeking reimbursement are conditions precedent to the plaintiff's obligation to reimburse the defendant.   There was no evidence that either condition was satisfied.   Accordingly, the court does not find the plaintiff in contempt for failure to pay half of the minor children's extracurricular expenses.

4. Pick-up at 5 p.m. Paragraph 4.1 of the Agreement provides that the minor children will be picked up by the plaintiff at 5pm.   The defendant testified that the plaintiff does not pick up the minor children by that time.   There is insufficient evidence before the court from which it could find that the plaintiff's actions were wilful, which is a required factual finding the court must make before finding a party in contempt.   Accordingly, the court does not find the plaintiff in contempt for failure to pick up the minor children by 5 p.m.

5. Ravens tickets.   Paragraph 11.8 of the Agreement provides that the plaintiff and the defendant shall each pay half the cost of their Ravens tickets;  however, the Agreement does not specify how the plaintiff is to invoice the defendant for her payment or provide a date by which the defendant is to make her payment.   In any event, the Agreement does not provide that the plaintiff may deduct from his child support and/or alimony payments the defendant's share of the cost of the Ravens tickets.

6. Maryland property.   Paragraph 9.2 of the Agreement provides that the plaintiff is the sole title holder of the Maryland real property.   Additionally, the Agreement is silent on the issue of the Maryland mortgage.   The court does not have jurisdiction to enter postjudgment orders with respect to title and debts related to the Maryland property.

7. The defendant has not proven that the plaintiff is in contempt or that there has been a substantial change in circumstances warranting the modification of the divorce judgment.   Notwithstanding these findings, however, the court will exercise its discretionary authority;  see Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988);  Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988);  and enter remedial orders in furtherance of the divorce judgment.

Accordingly, the court hereby ORDERS that:

1. Effective immediately upon his receipt of this Order, the plaintiff shall pay alimony and child support to the defendant on the Friday of each week.   The plaintiff shall not make any deductions from such payments whatsoever.

2. The court orders an immediate wage withholding.

3. The plaintiff shall execute all documents necessary to effectuate the wage withholding.   Child support and alimony payments shall be deposited into an account designated by the defendant.

4. The plaintiff shall cooperate with the defendant to close any joint checking accounts held by the parties, or to remove the defendant's name from such accounts.

5. The plaintiff shall provide the defendant with ten (10) days written notice of the due date for her payment for the Ravens tickets.   The plaintiff shall not deduct the amount of the defendant's payment from his alimony or child support payments.

6. Copies of this Order shall be sent by the Clerk's office to all appearing parties of record.

SO ORDERED.

Lisa Kelly Morgan, Judge

Morgan, Lisa K., J.