Michelle Baker v. Ryan Baker (2013)

MEMORANDUM OF DECISION RE MOTIONS # 152 AND # 153

The court (Shaban, J.) entered judgment dissolving the marriage of the parties on September 1, 2009.   On said date, the parties, both of whom were represented by counsel, requested the court to incorporate into the judgment of dissolution an agreement they had reached resolving the issues between them.   The agreement was found to be fair and equitable under all the circumstances existing at the time of the dissolution.   Accordingly, the agreement was incorporated into the judgment of dissolution.   The motions before the court concern the provisions of articles seven and ten of the judgment.

ARTICLE VI of the agreement provides that the wife shall maintain medical coverage or its equivalent for the benefit of Mariah if it is available to her through her employment for as long as Mariah is a full-time student but not beyond his(sic) attaining age 23.

ARTICLE VII of the agreement provides for the court's retention of jurisdiction for the purpose of issuing an educational support order for college expenses pursuant to Connecticut General Statute Sec. 46b–56c.

ARTICLE X provided for defendant's transfer of his interest in 403 Clear View Avenue, Harwinton, Connecticut to the plaintiff by quit-claim deed.   The plaintiff was to be solely responsible for payment of the first and second mortgages, taxes, insurance, and all expenses relating to the upkeep of the property.   The plaintiff was to hold the defendant harmless therefrom.

On September 21, 2010, the judgment was modified by the court (Danaher, J.), by written agreement of the parties.   Said agreement provided, inter alia, that the plaintiff would transfer her interest in 403 Clear View Ave., Harwinton, Connecticut to the defendant and that, commencing November 1, 2010, the defendant would be responsible for all expenses (first and second mortgages, taxes, insurance, and all expenses relating to upkeep).   The defendant was to hold the plaintiff harmless therefrom.   In addition, the defendant was to use his best efforts to refinance the mortgages to remove the plaintiff from those obligations at least once every twelve months until successful or until the property is sold.

On November 16, 2012, the plaintiff filed motions for contempt (# 152), claiming, inter alia, that the defendant has failed to take appropriate action to have her removed from the obligations associated with the property and for modification, seeking a contribution from the defendant for their daughter's medical insurance and an educational support order from the court pursuant to C.G.S. section 46b–56c (# 153).¹

Contempt

“[A] contempt finding is not automatic and depends on the facts and circumstances underlying it ․ In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  (Citations omitted;  internal quotation marks omitted.)  Dickinson v. Dickinson, 143 Conn.App. 184, 189, (2013), citing Parisi v. Parisi, 140 Conn.App. 81, 85–86, 58 A.3d 327, cert. granted on other grounds, 308 Conn. 916 (2013).   The order of the court, based on the parties' written agreement did not preclude payment of the second mortgage by negotiated settlement.   On the other hand, the order also requires the defendant to use his best efforts to remove the plaintiff from the mortgages.

The court finds that the defendant was late on his first mortgage payment on two occasions in October and November 2011.   At the time of the hearing, he was current on that mortgage.   He attempted to do a deed in lieu with Bank of America, but he was turned down.   After he lost his job, he negotiated a settlement with Citi Bank Mortgage which allowed him to pay $35,000 less than the amount he had taken on when he accepted the quitclaim deed from the plaintiff in September 2010.

He has attempted to refinance the first mortgage with Bank of America, but he has been turned down because of late payments.   He rents out the house.   However, he is not maintaining it, and the equity has diminished.   He now lives in Maryland.   He has offered to sell the house to a private investor, but he has not yet heard back from him.

The court finds that, although Plaintiff's credit has been adversely affected by the negotiated settlement with Citibank, he did not violate the order of the court requiring him to pay all the bills associated with the house.   Neither did he violate the order requiring him to make attempts to refinance.   In short, the plaintiff has not sustained her burden of proving that the defendant is in contempt of Judge Danaher's Order of September 21, 2010.

Educational Support Order

Section 46b–56c(a) of the Connecticut General Statutes defines an educational support order as an order entered by a court requiring a parent to provide support for a child to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction.   An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age.

Subsection (c) of sec. 46b–56c provides that the court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.

At the time of the hearing, the parties' only child, an adopted daughter, Mariah, was 20 years old.   The court finds the daughter's testimony that discussed her desire to enroll at Lincoln with both parents to be credible.   She applied to Lincoln while she was still living with her father, and she was accepted.   However, she did not graduate when she was scheduled to graduate.   At some point during her high school career, after her parents' divorce, she was left on her own due to her own behavioral issues and her father's move to Maryland.   She did, with the help of her mother, manage to get herself back on track.   She reapplied to Lincoln after her graduation and was accepted.   Her father told her that he was proud of her for being accepted.   He paid for her textbooks.   Based on all of the credible evidence, the court finds that the parties would have paid a large percentage, if not all, of the costs of their daughter's college education.

Subsection (c) also provides that, after making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:  (1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;  (5) the child's preparation for, aptitude for and commitment to higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend.

Defendant testified that he is willing to pay only 25% of his daughter's educational expenses because he has other dependents and the second house.   He has gross income of more than $100,000 a year, but he claims that he has a lot of expenses, including “dependents.”   He lives with his new wife and her daughter.   His wife does not work, and his stepdaughter works only part-time because she has a cognitive disability.   He claims that the house in Harwinton is a financial burden, but his financial affidavit shows that he has a shortfall of only a $38 a week as a result of renting the house.   The plaintiff has no college education.   She currently works at Starbucks at minimum wage.   She has had more lucrative employment in the past.   Moreover, the child has taken out loans with which she will be saddled during her young life while her father earns a good income.   She does receive grants.   Her mother has been helping her with room and board.   She is in need of more support than her father is willing to provide.   The court finds the plaintiff's position as to percentages to be reasonable given the evidence and the parties' financial affidavits.

Subsection (e) provides that, in order to qualify for payments due under an educational support order, the child must (1) enroll in an accredited institution of higher education or private occupational school, as defined in section 10a–22a, (2) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment, (3) maintain good academic standing in accordance with the rules of the institution or school, and (4) make available all academic records to both parents during the term of the order.   The order shall be suspended after any academic period during which the child fails to comply with these conditions.

Mariah is currently enrolled at Lincoln College of New England studying mortuary science.   The evidence is that she is doing well in school, and there is no evidence that she has failed to make her academic records available to both parents.

Medical Insurance

Mariah is currently in Connecticut's Husky program.   It is not clear from the evidence who, if anyone, is paying for that insurance.   If the Husky insurance becomes no longer available to Mariah, the plaintiff is able to obtain insurance for her through her employment at a cost of about $40 a week.

Conclusion and Orders

The court finds that the defendant, when compared to the plaintiff and the child, is in a position to pay for greater than 25% of his daughter's educational costs at Lincoln.   Therefore, the court orders the defendant to pay for seventy-five percent (75%) of Mariah's educational costs for the second half or semester of the first year and the entire second year at Lincoln College.²  This includes assuming responsibility for the relevant portion of any loans that Mariah was compelled to obtain.   Defendant is responsible for seventy-five percent of all of Mariah's educational costs during the period set forth.   Pursuant to subsection (f) of C.G.S. section 46b–56c, this educational support order includes support for any necessary educational expense, including room, board, dues, tuition, fees, books, and medical insurance.   The seventy-five percent shall not exceed seventy-five percent of the educational expenses which would be incurred at the University of Connecticut for the identified time period.

SO ORDERED.

BY THE COURT,

Gallagher, J.

FOOTNOTES

FN1. Several issues raised in the plaintiff's motions were resolved prior to the hearing on April 24, 2013..  FN1. Several issues raised in the plaintiff's motions were resolved prior to the hearing on April 24, 2013.

FN2. The motion for an educational support order was not filed until the parties' daughter had begun her first semester.   This court agrees with Judge Shluger's analysis in Jensen v. Jensen, Superior Court, Judicial District of New London at New London, No. FA02–0562538S (June 11, 2009), in denying retroactive application of an educational support order..  FN2. The motion for an educational support order was not filed until the parties' daughter had begun her first semester.   This court agrees with Judge Shluger's analysis in Jensen v. Jensen, Superior Court, Judicial District of New London at New London, No. FA02–0562538S (June 11, 2009), in denying retroactive application of an educational support order.

Gallagher, Elizabeth A., J.