Esther Celli v. Ugo Celli (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR ORDER POSTJUDGMENT # 152

Proceedings

On May 8, 2013, the defendant moved the court for an order that the plaintiff pay and/or reimburse various sums of money due him.   The Motion was scheduled for hearing on June 20, 2013.   It was continued to July 17, 2013.   The plaintiff appeared before the court on July 17 without an attorney.   The defendant appeared with his attorney.   The matter was continued to August 13, 2013 and assigned to this trial court for hearing.   The plaintiff again appeared on August 13, 2013 without counsel.   She elected to proceed with the hearing without an attorney as a self-represented litigant.   The defendant again appeared with counsel and was represented throughout.   The hearing commenced and concluded on August 13, 2013.   The plaintiff and the defendant each testified.   No other witness was called by either party.   Each of the parties introduced several exhibits.

Findings

The parties were divorced on September 15, 2003.   A Separation Agreement (Agreement) between them was approved by the court and incorporated into the Judgment by reference.   The defendant was required to pay $187 per week to the plaintiff as child support, pursuant to paragraph 5 of the Agreement.   On March 8, 2007, the defendant's child support obligation was modified to $267 per week.   He should have paid the total sum of $33,660 for the 180 weeks between September 15, 2003 and March 8, 2007, at $187 per week.   He introduced undisputed evidence of child support payments received by the plaintiff for the 180 weeks between September 15, 2003 and March 8, 2007, totaling $45,059.10.   Based on the unrefuted evidence presented, the court finds that he overpaid the plaintiff the sum of $11,059.10 for child support for the period September 15, 2003 to March 8, 2007.   He has requested reimbursement of the overpayment in the amount of $9,470.10 only.

On February 26, 2008, the court, after a hearing on a motion for contempt filed by the plaintiff, found the defendant in contempt.   He was ordered to pay the sum of $6,683.80 to the plaintiff for extra-curricular activity expenses for their children.   He appealed (inter alia ) the finding of contempt and order to pay $6,683.80 for extracurricular activity expenses.   However, he made the $6,683.80 payment as was ordered, pending the appeal.   On June 30, 2009, the Appellate court reversed the judgment of the trial court as to its finding of contempt to the extent that it was based on the defendant's failure to pay extracurricular activity expenses.   The case was remanded to the trial court with direction to vacate that finding.   Costs in the amount of $457 were taxed by the Appellate court in favor of the defendant.   On July 31, 2009, the trial court (Owens, J.) vacated its finding of contempt, pursuant to the order of the Appellate court.   No order was issued for the plaintiff to reimburse the defendant the $6,683.80 payment or the $457 costs taxed.   The defendant now seeks such an order.

Paragraph 9 of the parties' Separation Agreement requires the plaintiff to pay 1/4 and the defendant to pay 3/4 of the cost of tuition, room, board and books using UConn as a cap for their daughters' post-secondary educational support.   The defendant has had to pay (a) $14,259.09 more than his 3/4 share for their daughter Erica's post-secondary educational support as a result of the plaintiff's failure to pay her 1/4 share for Erica;  $5,550.16 more than his 3/4 share for their daughter Maritza's post-secondary educational support as a result of the plaintiff's failure to pay her 1/4 share for Maritza;  and $12,508.98 more than his 3/4 share for their daughter Tasha's post-secondary educational support as a result of the plaintiff's failure to pay her 1/4 share for Tasha.   He seeks an order for the plaintiff to reimburse him a total of $32,318.23 for daughters' post-secondary educational support as a result of her failure to pay the 1/4 shares she was obligated to pay.

Paragraph 29 of the parties' Separation Agreement provides that if a court rules in favor of the position of the husband or wife as to any major question submitted to the court, pursuant to the Agreement, the party against whom the ruling of the court is directed, shall pay the other party's reasonable attorney fees, and costs reasonably incurred.   This court finds that the defendant is the prevailing party as to the issues submitted to this court and ruled upon herein.   He filed Affidavits of Legal Fees with the court on August 13, 2013.   After a lapse of almost four (4) years he now seeks an award of $25,200 as to the defendant's appeal, the plaintiff's Motion for Contempt and the defendant's Objection;  and he seeks an additional $1,200 for the proceedings on June 20 and August 13, 2013, totaling $26,200.

The plaintiff is remarried.   Her spouse is gainfully employed and substantially pays all of their household bills and expenses.   She is employed as a hairdresser in a salon owned by her current husband.   She submitted a sworn financial affidavit showing a net earned income of $240 per week plus $65 per week in tips.   She has a total net income of $302 per week (excluding child support payments of $190 per week).   She has no other significant assets.   The defendant failed to establish by a preponderance of evidence his claims that the plaintiff possesses or has access to more income or assets.

Orders

In entering the following orders the court has taken judicial notice of its file, and has carefully reviewed, considered and weighed all of the evidence.   Based upon the totality of the evidence adduced at the hearing on the defendant's Motion for Order, it is hereby Granted.

It is further ordered:

The plaintiff shall pay to the defendant the sums totaling $50,129.13 derived as follows:

1. $9,470.10 as reimbursement for the overpayment for child support for the period September 15, 2003 to March 8, 2007;

2. $6,683.80 for extra-curricular activity expenses made pending the appeal;

3. $457 for costs taxed in favor of the defendant by the Appellate court;

4. $32,318.23 for their daughters' post-secondary educational support, as a result of the plaintiff's failure to pay her 1/4 share;

5. No award of attorney fees as to the defendant's appeal, the plaintiff's Motion for Contempt and the defendant's Objection thereto;  and

6. $1,200 as an award of attorney fees for the proceedings before this court on June 20 and August 13, 2013.

The plaintiff shall make payment to the defendant by the 1st day of each month in the amount of $500 per month, commencing October 1, 2013, until the sum of $50,129.13 has been paid in full.

By the Court,

JOHN TURNER,

JUDGE OF THE SUPERIOR COURT

Turner, John, J.