Craig R. Merriman v. Sharon Y. Merriman (2013)

MEMORANDUM OF DECISION

The defendant, through counsel, brought this post-judgment motion for contempt (Motion No. 181.00) against the plaintiff, her former husband, alleging that the plaintiff failed 1) to pay her the $6,500 property settlement, 2) failed to pay his share of the unreimbursed medical expenses for the minor child, 3) failed to provide proof of work-related life insurance coverage for the benefit of the minor child and 4) failed to pay his portion of the post-majority educational expenses of the minor pursuant to the court's orders.   Plaintiff also filed two motions for order (Motions No. 186 and 187) seeking to have the defendant provide proof of payment of a certain bill and seeking to hold her responsible for her percentage of the minor child's health insurance premium pursuant to the order of the court dated April 30, 2012.   The defendant filed an objection asserting that absent a showing of the specific bill claimed to be unpaid and that the plaintiff actually incurred an expense for the minor child's health insurance premium his motion must be denied.   A hearing was held on the motions on September 10, 2013 at which time the plaintiff and the defendant were fully heard.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.”  (Internal quotation marks omitted.)  Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992).   In a civil contempt proceeding, the movant has the burden of proof to show that there was a clear and unambiguous order entered by the court and that there was a willful violation of that order that was not excused by a good-faith dispute or misunderstanding.  In re Leah S., 284 Conn. 685, 693–94, 935 A.2d 1021 (2007);  Isler v. Isler, 50 Conn.App. 58, 66–69, 716 A.2d 938 (1998), rev'd on other grounds, 250 Conn. 226, 737 A.2d 383 (1999).  “Noncompliance alone will not support a judgment of contempt.”  (Internal quotation marks omitted.)  Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001).   Before finding a person in contempt for the willful violation of a court order, the court must consider the circumstances and facts surrounding the violation.   Wilson v. Wilson, 38 Conn.App. 263, 275–76, 661 A.2d 621 (1995).  “It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order.”  Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985).

The marriage of the parties was dissolved by order of the court (Boland J.) on July 31, 2008.   Pursuant to article 7.1 ¹ of the judgment, the plaintiff was to pay the defendant the sum of $6,500 within 90 days of the date of the judgment.   The plaintiff freely admitted to not paying said sum and being in non-compliance with the order.   No evidence was presented which would lead the court to believe that the plaintiff did not have the ability to pay said sum.   Thus, the court finds the plaintiff to be in contempt of this order.

The judgment also provided in article 5.2 that the plaintiff would be responsible for 25% of the minor child's health care expenses as well as his health insurance.   The evidence established that the plaintiff failed to pay $742.13 of unreimbursed medical expenses.

Further, the defendant claims that the plaintiff has willfully and in contempt of the court's orders failed to pay his portion of the minor child's college tuition expenses pursuant to the order of the court (Shluger, J.) dated April 30, 2012.   The court order, which this court finds to be clear and unambiguous, directed the plaintiff to pay 75% of said expenses if he were employed and 60% if he were unemployed on the last day that the money is due.   The plaintiff testified that he had not made the payments, knows he owes them, but questioned whether he owed the 60% or the 75% testifying that he was unemployed from June 2012 through the early part of November 2012.   The evidence presented showed that the college education expense for the minor child for the 2012–2013 academic year was $21,624.25 less financial aid and student loans of $12,740 leaving a parental balance of $8,884.20.   The court therefore finds that the parental responsibility portion for each semester was $4,442.10.   Given that the plaintiff was unemployed from June 2012 into November 2012, the time period during which the first semester payment was due, the court finds that the plaintiff owed $2,665.26 ($4,442.10 x .60) for the first semester.   Given that the plaintiff was employed during the time period of the second semester billing he would have been responsible for 75% of said billing or $3,331.58.   Thus, the plaintiff's total responsibility for the tuition-related expenses was $5,996.84.   The evidence demonstrated that the plaintiff paid $4,000 of said amount leaving $1,996.84 outstanding.   As further justification for his non-compliance, the plaintiff argued, inter alia, that he thought he should be entitled to offset the amount he was paying for the minor child's health insurance premium and he was not given access to his son's grades so as to know whether his obligation to pay continued pursuant to Conn. Gen.Stat. § 46b–56c.   With respect to the issue of the insurance offset, the evidence established that the plaintiff and his family, which consists of his current wife and her two daughters, are insured under his wife's insurance on a family plan and there is no additional expense to having the parties' son insured under the plan as well.   However, the court finds that the plaintiff was entitled to request confirmation of his son's grades to ensure that the parties' son was in good academic standing.   The plaintiff contends to this date he has not received this information and the parties' son is no longer enrolled at Central Connecticut State University, but rather now attends a community college.   For these reasons, the court does not find the plaintiff's failure to pay the remaining sums due and owing pursuant to the educational support order willful non-compliance.

Lastly, the defendant seeks to hold the plaintiff in contempt for his failure to provide evidence of his work-related life insurance or an authorization permitting the defendant to obtain proof of same.   The order was clear and unambiguous.   No evidence was presented to show why an authorization was not given so that defendant could verify this information.   The court therefore finds the plaintiff in willful violation of the order.   However, the court notes and credits the plaintiff's testimony that his current position affords him no benefits.   Thus, the plaintiff's non-compliance did not jeopardize the child's benefits, but served only to perhaps increase the plaintiff's attorneys fees and her frustration.

Counsel for the defendant seeks an order of attorneys fees.   The testimony and argument established that the defendant's counsel billed her at the hourly rate of $250 per hour and the billing in connection with the instant motion for contempt totaled $1,600 prior to coming to court.   The court noted that an additional five hours was incurred in connection with attending the hearing on the matter bringing the total bill for services rendered in connection with defendant's motion for contempt to $2,850.   The court finds this amount to be fair and reasonable.   The plaintiff testified that he currently earns $113,000.   Prior to securing his current position, he earned $85,000.   He contends that during the five-month period when he was laid off, his family bills accumulated and he is now doing what he can in order to get current on his financial obligations and asked the court to be mindful of this when deciding the issue of awarding counsel fees.

Accordingly, it is hereby ORDERED that:

1. The Motion for Contempt is granted in part and denied in part as follows:

a) The plaintiff is found in contempt of court for his failure to pay the defendant the $6,500 as ordered by the court.   Said sum shall be paid to the defendant on or before October 31, 2013.   A $50 per day sanction shall enter for each day that it is not paid thereafter.

b) The plaintiff is also found in contempt for his failure to provide an authorization to the defendant to obtain verification of the existence of work-related life insurance benefits.   Counsel for the defendant shall prepare said authorization and submit it to the plaintiff on or before October 7, 2013 and the plaintiff shall return the duly executed authorization to defendant's counsel on or before October 31, 2013.

c) The plaintiff is not found in contempt for his failure to pay the educational or unreimbursed medical expenses of the minor child for the reasons stated in the opinion.

4. The Plaintiff's Motion for Order, Motion No. 186, is denied.

5. The Plaintiff's Motion for Order, Motion No. 187, is denied.

SO ORDERED.

SUSAN A. CONNORS, JUDGE

FOOTNOTES

FN1. Subsequent to the entry of the judgment, the parties entered into a postjudgment modification of the property settlement provision.   As this court made a finding during the hearing that the court (Shluger, J.) was without jurisdiction to entertain the postjudgment modification pursuant to Bunche v. Bunche, 36 Conn.App. 285, 429 A.2d 874 (1980) the court permitted the defendant to proceed on the basis that the payment was not made in accordance with the original terms of the judgment..  FN1. Subsequent to the entry of the judgment, the parties entered into a postjudgment modification of the property settlement provision.   As this court made a finding during the hearing that the court (Shluger, J.) was without jurisdiction to entertain the postjudgment modification pursuant to Bunche v. Bunche, 36 Conn.App. 285, 429 A.2d 874 (1980) the court permitted the defendant to proceed on the basis that the payment was not made in accordance with the original terms of the judgment.

Connors, Susan A., J.