Charlotte Malpeso v. Pasquale J. Malpeso (2013)

MEMORANDUM OF DECISION

Before this court are the plaintiff's Motion for Contempt # 378 dated June 13, 2012, the defendant's Motion for Contempt # 358 dated September 13, 2011 and the defendant's Motion for Modification re Alimony and Child Support, Postjudgment # 361.01 dated January 25, 2012.   Procedurally the hearing on all three motions commenced while an appeal was pending in the Appellate Court.   That appeal was from a decision (Wenzel, J.) sustaining the plaintiff's objection to the defendant's Motion for Modification of alimony and child support on the basis that the language in article 3.2(a) of the parties' separation agreement precluded modification “only upon a substantial change in the economy of New York due to a catastrophic event.” ¹  The Appellate Court disagreed with the decision of the trial court and held

Paragraph 3.1 of the agreement provides that until certain conditions are met, the defendant shall pay the plaintiff $20,000 per month “as alimony, or separate maintenance for the support of the minor children ․” The only plausible interpretation of this clause is that it provides for unallocated alimony and child support.   Paragraph 3.2 expressly limits only the modifiability of alimony.   The agreement is silent as to the modifiability of child support.   In light of the presumption favoring the modifiability of child support;  see Guille v. Guille, supra, 196 Conn. 268 n.2;  the agreement must be construed to permit the modification of child support.   Accordingly, we must reverse the trial court's judgment sustaining in part the plaintiff's objection to the defendant's motion for modification of child support on the ground that payments for child support were subject to the nonmodification clauses of paragraph 3.2.

The judgment is reversed and the case is remanded for further proceedings according to law.  (Emphasis added.)  Malpeso v. Malpeso, 140 Conn.App. 783, 788–89 (2013).

The issue therefore on remand is whether the plaintiff is statutorily entitled to a modification of child support.

General Statutes § 46b–86(a) provides in relevant part:  “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support ․ may, at any time thereafter, be ․ modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b–215a ․

Malpeso v. Malpeso, 140 Conn.App. At 786.

Pursuant to Conn. Gen.Stat. § 46b–86, upon a finding of a substantial change in circumstances, the court has the discretion to continue the order, set it aside, alter, or modify the existing order.   To make such determination, the court must examine the operative financial affidavits, which are those filed at the time of the dissolution, and the entry of the order in 2004 and those affidavits filed in 2013 in support of the motion to modify.   Borkowski v. Borkowski, 228 Conn. 729, 739 (1994).   In addition, the court must reconsider the statutory factors delineated in Conn. Gen.Stat. § 46b–82, Alimony as well as Conn. Gen.Stat. § 46b–84, Parents' obligation for maintenance of minor child.

Prior to such determination however the court must consider the allegations in the defendant's Motion for Modification dated January 25, 2012.   The defendant alleges, without dispute, that the agreement and judgment provided that the defendant pay to the plaintiff the sum of unallocated alimony and child support in the amount of $20,000 per month.   The defendant further alleges in paragraph 3 of his motion for modification that:

There has been a substantial change in the circumstances of the parties including the following:  all the parties have reached majority, are no longer residing with the plaintiff, and their college expenses are being paid by the defendant, and there has been a downturn in the defendant's financial circumstances.

Upon an examination of the record and evidence presented at the hearing, the court finds the following:

1. All three children of the parties have reached the age of majority;

2. No children reside with either the plaintiff or the defendant.

3. All college expenses of the three children were paid by the defendant pursuant to the parties' separation agreement.

4. A downturn in the defendant's financial circumstances is speculative, and uncorroborated, indeed contradicted, by evidence elicited by the defendant's own expert's testimony as well as the exhibits introduced at the hearing including the financial affidavits of the parties.

I. Discussion:  re the Motion for Modification

As to Finding # 1

1. The parties have three children, one son Pasquale born on April 1, 2006 and twin daughters, Emilia and Emma born on June 9, 2011.   All three children are over the age of majority.   Pursuant to Conn. Gen.Stat. § 46b–84(b) the parents' obligation to support them has terminated.   This finding in and of itself is sufficient to warrant a modification of the unallocated alimony and support.

As to Finding # 2

The unequivocal testimony of the parties clearly established that the children do not reside on a permanent basis with either parent.

As to Finding # 3

Uncontroverted testimony and evidence established that the defendant agreed at the time of the dissolution pursuant to § 10.2 of the separation agreement as follows:

10.2 The Husband shall be responsible for payment of the costs of undergraduate college and/or vocational educational expenses for the three minor children.   For purposes of this subparagraph, said undergraduate college educational expenses shall include, room, board, books, tuition, fees and a reasonable travel allowance to and from home.   Said expenses shall also include college application fees and costs, the costs of SAT preparation courses and the costs of required pre-college tests.

The husband did testify convincingly that he believed that once he assumed the college expense obligations pursuant to § 10.2, his unallocated alimony and support payment would be reduced.   However this is not what the agreement provides.   He is bound by the terms of the agreement and therefore cannot now claim that the costs of college expenses are a basis for modification.²

As to Finding # 4

The evidence clearly establishes that the defendant's income has increased substantially from the date of dissolution.   The June 2004 financial affidavit of the defendant shows a net income of $39,983.34 per month.   The net income figure in the October 22, 2012 affidavit is $63,279.00 per month, a significant increase.   The defendant's real estate holdings in New York City have also increased.   The tax returns (Exhibit C, Exhibit A) confirm the increase in income.   Significantly, the defendant's claims that his income will be adversely impacted by;  a. refund adjustments/denials by insurance companies and b. a federal lawsuit for insurance fraud currently pending are, to date, without merit.  (Ex. A, Ex. 2, Ex. B, testimony of the defendant's expert, Bernd Strauss.)

While not specifically alleged in the defendant's Motion For Modification the defendant claims three additional bases for modification in his Memorandum of Law dated November 30, 2012, namely:

1. That the defendant/former husband has a substantial liability for payment of refund claims asserted by medical insurance companies and payments required which therefore will reduce his income.

2. That the defendant/former husband's income will probably be adversely impacted as a result of a reduction in the number of surgical procedures that otherwise could have been charged to a patient's medical insurance, but not dental insurance.

3. That during the pendency of this motion, the defendant's primary residence located on Sherwood Island in Westport, Connecticut suffered extensive damage by Hurricane Sandy (approximately nine out of the fourteen homes on the island suffered such extensive damage that they will have to be totally rebuilt).   The total cost for repair has not been quantified as of this time, but there is no insurance coverage.   These circumstances, at the least, create additional financial distress and most probably will impact on the value of the property in the future.

The defendant's claims as to the substantial liability for payment of refund claims is an anticipated liability, therefore uncertain and speculative.   Similarly his assertion in # 2 above that his income “will probably be adversely impacted” is again speculative and not supported by evidence.   Finally, # 3 is anticipatory, speculative unsupported by any evidence and therefore not a basis for a modification of alimony and support.

II. The Defendant's Motion for Contempt, Postjudgment dated September 13, 2011

The defendant Pasquale J. Malpeso moves to find the plaintiff Charlotte Malpeso in contempt by (paragraph 9 of said motion) “refusing” to provide reasonable support to and for the parties' children for support expenses such as clothing, necessities, entertainment, personal transportation, allowance, laundry, dry cleaning, grooming, etc.”   This alleged refusal is predicated upon the defendant's payment of $20,000 per month of unallocated alimony and support.   The testimony of the defendant establishes that in addition to the college expenses of the parties' three children, he has paid numerous additional expenses including but not limited to housing expenses, telephone, living and clothing.   The defendant contends that such expenses should be borne by the plaintiff pursuant to the order of unallocated alimony and support.   Yet when the children request such of the plaintiff she defers by stating “ask your father.”   While the court is persuaded that such testimony is credible, it is not the basis for a finding of contempt.   There is no court order mandating the plaintiff to pay such expenses.   The defendant's voluntary assumption of the payment of his children's expenses while laudable is also enabling.   The defendant has testified credibly to the proud accomplishment of his immigrant parents having provided an ivy-school education of his siblings, much to his parents' economic sacrifice.   While the court does not render advisory opinions, it notes that the three children of this marriage are well educated, healthy, and should be able to now provide for themselves, statutorily and without draining the resources of their caring parents.³  Accordingly, the court does not find the plaintiff to be in contempt.

III. The Plaintiff's Motion for Contempt June 13, 2012

The court has reviewed the plaintiff's motion for contempt.   The court has heard testimony in reference thereto.   Based on the testimony and evidence, the court finds the defendant to be in willful and intentional violation of the court orders.   The court finds him in contempt.   Accordingly, the court orders the defendant, Pasquale Malpeso to pay to the plaintiff, Charlotte Malpeso the sum of $300,000 as of December 2012.   In addition, the defendant owes the plaintiff the sum of $20,000 per month for the months of January 2013 through July 2013, a period of seven months calculated at seven times $20,000 or $140,000.   The total sum due to the plaintiff is therefore $440,000.   Due to the finding of contempt, the court awards to counsel for the plaintiff attorney fees in the amount of $40,000.   Costs in the amount of $1,016.18 are also awarded to the plaintiff.   The payment of said fees shall be paid within ninety (90) days of this decision.

IV. Conclusion

As to the defendant's motion for modification of alimony and support, such is granted.   Pursuant to Conn. Gen. Statutes § 46b–84(b) the children of the marriage have reached the age of majority.   By law, the court now looks to the child support guidelines to determine the presumptive amount for three children with the parents' combined net income of $16,850 per week.  Maturo v. Maturo, 296 Conn. 80 (2010) (the plaintiff's financial affidavit stating $15,000 net monthly income and the defendant's financial affidavit stating net monthly income of $58,269).   Pursuant to the guideline calculations and a declining factor given the income of the parties, the presumptive amount is $2,061 per week or $8,862 per month.   Pursuant to the statutory discretion afforded to this court, based on the testimony and evidence elicited at hearing, the court orders the following:  the unallocated alimony and support is reduced to $12,000 per month from this date henceforth.   Said amount is now solely alimony and subject to the provisions of the parties' separation agreement at the date of the dissolution.   The court, based on its previous finding of contempt, supra, declines retroactivity.

So ordered.

THE COURT

SCHOFIELD J.

FOOTNOTES

FN1. Section 3.2(b) also provides:  After July 1, 2012, upon a court of competent jurisdiction's determination that there has been a substantial change of circumstances as provided for in Connecticut General Statute § 46b–84a..  FN1. Section 3.2(b) also provides:  After July 1, 2012, upon a court of competent jurisdiction's determination that there has been a substantial change of circumstances as provided for in Connecticut General Statute § 46b–84a.

FN2. Unless of course those college expenses substantially changed his financial circumstances..  FN2. Unless of course those college expenses substantially changed his financial circumstances.

FN3. The parties' children have attended and will or have graduated from the following colleges;  Pasquale, Iona College;  Emilia, George Washington University;  Emma, University of Vermont.   The defendant's financial affidavit lists living expenses for Pasquale (the son) and Emilia (the daughter) of $4,759.00 per month..  FN3. The parties' children have attended and will or have graduated from the following colleges;  Pasquale, Iona College;  Emilia, George Washington University;  Emma, University of Vermont.   The defendant's financial affidavit lists living expenses for Pasquale (the son) and Emilia (the daughter) of $4,759.00 per month.

Schofield, Marylouise, J.