David W. Carswell v. Denneyse M. Carswell (2013)

MEMORANDUM OF DECISION

The following matters were heard by the court on October 8, 2013, except for Motion # 280 which was calendared but did not go forward as noted herein.   The findings and orders of the court are set forth below with respect to each motion.

Defendant's Motion for Contempt (Motion # 274.00)

This motion has three subparts, in each of which the defendant seeks a finding of contempt:

(a) The first claims the failure of the plaintiff to submit to his health insurance company in a timely fashion a bill in the amount of $1,042.09 for ambulance services provided to one of the parties' children in November 2007.   The bill remained unpaid by either party as of the date of the hearing.   The court does not find the failure to submit the bill for insurance processing to constitute a willful violation of any order of the court set forth in the September 10, 2009, Memorandum of Decision dissolving the marriage.

(b) The second claims the failure of the plaintiff to pay 60% of an outstanding dental bill of $530 for services to one of the parties' children.   The court finds that the plaintiff had not received a copy of the bill prior to the hearing and that his failure to pay his portion thereof was not willful.   However, the court orders that the defendant provide a copy of the bill to the plaintiff (which she represented would be done promptly upon the conclusion of the hearing), and that within thirty (30) days of his receipt of such copy the plaintiff make arrangements satisfactory to the provider for payment directly to the provider of 60% of the outstanding bill.

(c) The third claims an obligation of the plaintiff to pay to the defendant a sum equal to 60% of the defendant's travel expenses for taking her daughter for repeated visits to an orthodontist who provided his services on a pro bono basis.   The court concludes that the provision of the dissolution judgment which obligates the plaintiff to pay 60% of unreimbursed medical expenses extends only to expenses payable to the providers of medical services or products, and not to the parties' individual costs of transporting the children for treatment.   The court finds that there was no court order obligating the plaintiff to pay a share of such transportation expenses.

For the foregoing reasons, the motion for a finding of contempt is denied, subject to the remedial order set forth in subsection (b) regarding the outstanding dental bill.

Defendant's Motion for Contempt (Motion # 275.00)

This motion raises two issues, as to each of which the defendant seeks a finding of contempt:

(a) The defendant claims that the plaintiff failed to provide proof that he has maintained life insurance as required by the terms of the judgment of dissolution.   In its Memorandum of Decision dissolving the marriage dated September 10, 2009, the court required in Paragraph 9 of its orders (sometimes hereinafter referred to as the “Orders”) that the plaintiff maintain a $300,000 life insurance policy naming the defendant as the irrevocable beneficiary.   The judgment further ordered the plaintiff to provide specific documentation about the policy to the defendant annually.   By a subsequent agreement which was approved and made an order of the court on October 13, 2009, the amount of the required policy was increased to $400,000, with the plaintiff required to “allocate $100,000 for the benefit of Cameron and Micaela” until a specified time.   At the hearing, the plaintiff submitted into evidence (Plaintiff's Exhibit 1) a copy of an application by the plaintiff for a Transamerica Life Insurance Company policy in the amount of $500,000, in which the proposed beneficiaries are named as the defendant (60%), and four children including Cameron and Micaela (10%) each.   The face amount of insurance applied for may mathematically compute to the amounts required by the prior court orders.   However, the documentation and information represented by Plaintiff's Exhibit 1—which the court finds to be the first notification the defendant has ever received regarding the purported current policy—fall woefully short of the requirements of the court's order.   First and foremost, it is a mere application for life insurance, with nothing to document the subsequent issuance of an actual policy.   The application itself is undated, but an accompanying letter indicates that a medical screening of the plaintiff with respect to the application was to be done on March 4, 2013.   There is no proof that a policy was issued and remains in effect, no proof of payment of premiums, and no proof that the defendant is named as an irrevocable beneficiary as to the portion of the proceeds to which she is entitled under the dissolution judgment as amended.   Furthermore, the application for a new policy and the plaintiff's testimony indicate that the prior policy was terminated, replaced, or allowed to lapse, without notice to the defendant and without evidence that there was never a gap in the required coverage.   The court finds that the order of the court regarding life insurance was clear and unambiguous, that the plaintiff had the ability to comply with the order, and that he willfully failed to do so.   The court finds the plaintiff in contempt of the order and hereby orders as follows:

(1) The plaintiff shall within thirty (30) days of this order provide the defendant with all of the documentation of life insurance coverage which is required under Paragraph 9 of the Orders;  and

(2) The plaintiff shall, within said period of thirty (30) days, instruct the insurer under said policy to name the defendant as a party to receive notice of any nonrenewal of the policy and of any nonpayment of premiums, and provide the defendant with proof of said instruction, and the plaintiff shall thereafter take such other steps as may be necessary to implement and continue in force such instruction;  and

(3) The plaintiff shall, within said period of thirty (30) days, pay to the defendant the sum of $150.00 to compensate her for her travel expenses in pursuing this motion;  and

(4) The plaintiff shall henceforth comply strictly with the provisions of Paragraph 9 of the Orders (as amended by the October 13, 2009 order) regarding life insurance and the provision of information to the defendant.

(b) The motion also seeks a finding of contempt based on past instances in which the defendant claims that alimony payments due from the plaintiff were made late.   The court finds that there was insufficient evidence upon which to base a finding that on any specific occasion the plaintiff willfully failed to comply with the alimony order.   Furthermore, the parties were in agreement that the plaintiff is not delinquent in his alimony obligations at the present time.   The court does not find the plaintiff in contempt as to this claim.   As a remedial measure, the court notes that by agreement at the hearing the plaintiff delivered to the defendant a check in the amount of $35.00 to reimburse her for the Walmart late fee referenced in her motion.   As a further remedial measure, to which there was also agreement by the parties, the court hereby orders that future alimony and alimony arrearage payments be made by the plaintiff via immediate wage withholding.   The defendant shall cooperate with the plaintiff's employer to insure that it receives the necessary information in order to send the withheld payments to her bank or credit union account by electronic transfer.   The plaintiff shall continue to make direct payments of current alimony and arrearage to the defendant until and except to the extent that such payments are made via wage withholding.

Defendant's Motion for Contempt (Motion # 276.00)

This motion raises two issues, as to each of which the defendant seeks a finding of contempt:

(a) The defendant claims that the plaintiff failed to provide her with a copy of his 2012 income tax return, to which she was entitled by June 1, 2013, under Paragraph 7 of the Orders, until a date later in June of that year.   The court finds that this short delay does not constitute the willful violation of a court order under these circumstances and does not find the plaintiff in contempt with respect to it.

(b) The defendant also claims that the plaintiff failed to pay her a sum equal to 10% of his state and federal 2012 income tax refunds, to be applied to the arrearage owed by him, in accordance with Paragraph 14(b) of the Orders.   The plaintiff testified that he was prepared on July 15, 2013, to make the required payments to the defendant and wrote checks to her for the appropriate amounts on that date, but was unsure of her whereabouts at the time.   In view of the defendant's testimony that she is homeless, the court finds the plaintiff's explanation plausible and does not find that he willfully failed to comply with the court order.   Furthermore, the plaintiff delivered the two checks to the defendant at the hearing.

For the foregoing reasons, the motion for a finding of contempt is denied.   However, the court orders that in the future the plaintiff shall strictly comply with the provisions of Paragraph 7 of the Orders, and further orders that henceforth he pay to the defendant the portion of any tax refund he receives which is due to her with fifteen (15) days of his receipt of such refund.

Defendant's Motion for Contempt (Motion # 277.00)

This motion seeks a finding of contempt against the plaintiff for his claimed failure to notify the defendant of self-employment and/or business activity generating income, as required by Paragraph 8 of the Orders.   The court finds that the defendant did not produce sufficient evidence that a violation of such order occurred and therefore finds no contempt as to this motion.

Defendant's Motion for Contempt (Motion # 278.00)

This motion seeks a finding of contempt based on the claimed failure of the plaintiff to pay a water bill for the former marital home at 69 Walbridge Road, West Hartford, Connecticut.   The defendant submitted Exhibit B, a “Final Notice” from The Metropolitan District dated July 20, 2012, showing a balance due of $876.36 on the account for that address.   The notice does not reflect the dates of service for which the charges are due.   Paragraph 13 of the Orders made the plaintiff responsible for all utility charges for the property up until the date he quitclaimed his interest in the premises to the plaintiff, with the defendant to be responsible for utility charges thereafter.   As the court cannot determine from the evidence the time period covered by the outstanding water charges, no finding of contempt is made as to this motion.

Defendant's Motion for Modification (Motion # 279.00)

This motion seeks both the modification of alimony and modifications regarding the life insurance required of the plaintiff.   The court has already made certain orders above regarding the life insurance policy with respect to Motion # 275.00, and makes no further orders or modifications with regard to the policy pursuant to this Motion # 279.00.

The plaintiff is currently paying alimony of $200 weekly (plus a $20 weekly payment toward an arrearage previously found by the court).   As to the modification of alimony, the defendant advances two arguments to support her claim for an increase.   The first is her assertion that she is totally disabled and unable to work, and that the attribution of an earning capacity of $20,000 for purposes of the dissolution judgment was not appropriate.   The defendant testified that the Social Security Administration has now determined her to be disabled (but has denied SSI benefits due to the amount of alimony she receives).   In support of that claim she introduced Exhibits C and D, letters from the Social Security Administration and Massachusetts SSI State Supplement Program, dated April 17, 2013, and May 8, 2013, respectively.   While those documents do not specifically detail a finding of physical disability, the court can infer from them that some such determination was made.

A review of the court's detailed Memorandum of Decision after the trial of the dissolution matter makes it clear that the defendant claimed complete disability at the time of trial, as she does now.   The court then found that she did have physical conditions which limited her ability to work but did not make work impossible.   The court noted that at the time of trial the defendant's application for Social Security disability benefits was pending.   At the hearing on the present motion, the defendant testified that her application for a finding of disability was initially denied but then subsequently approved;  hence the title of Exhibit C, “Notice of Decision—Amended Fully Favorable.”

The threshold issue for the court to consider with regard to a motion for modification of alimony is whether there has been “a showing of a substantial change in the circumstances of either party.”  Connecticut General Statutes Section 46b–86.   Exhibits C and D do not provide any detail as to the nature of the defendant's disability or the time frame within which the disability commenced.   No other medical evidence was introduced except for the defendant's own testimony about her condition.   In that testimony, she stated that things are essentially the same now as they were at the time of the dissolution, i.e. that she was unable to work at all then and is unable to work at all now.   The defendant now does have an item of evidence of disability, in the form of the Social Security determination, that she lacked at the time of the trial of the dissolution matter.   In essence, she asks the court to find that the prior decision assigning her a $20,000 earning capacity was incorrect and should be modified now that she has this additional evidence.

The power of the court “to modify the existing order does not, however, include the power to retry issues already decided ․ or to allow the parties to use a motion to modify as an appeal.”  Borkowski v. Borkowski, 228 Conn. 729, 738 (1994).   By the defendant's own testimony, the degree of her disability has not changed since the dissolution judgment, even while the Social Security Administration has first denied and then approved her application for a determination of disability.

The defendant's second claim of changed circumstances relates to the income of the plaintiff.   At the time of the dissolution judgment the plaintiff had recently lost his job, but the court assigned to him an earning capacity of $70,000 per year.   At the hearing on this motion the parties stipulated that the plaintiff's gross income as reported on his tax return for calendar year 2012 was $77,500.   The plaintiff's current financial affidavit indicates weekly income of $1,510, which equates to annual income of $78,520.   The court finds that while the current income of the plaintiff is somewhat higher than the earning capacity assigned to him at the time of the dissolution, the increase does not rise to the level of a “substantial change in circumstances.”

The defendant claimed at the hearing that the plaintiff earns significant amounts of unreported income from activities outside of his regular employment, and submitted into evidence various bank account records of the plaintiff from 2010 through 2012.   The court is unable to determine from those records that the plaintiff's actual income is any higher than the aforesaid amounts.

The defendant also cited an improvement of the plaintiff's financial condition as the result of his bankruptcy filing after the date of the dissolution and the discharge of some of his debts.   However, at the time of its decision on the dissolution the court specifically considered the high likelihood “that one or both of the parties will seek the protection of the bankruptcy court in the future.”   Memorandum of Decision dated September 10, 2009, at page 10.

For the foregoing reasons, the court finds that the defendant has not demonstrated a substantial change in circumstances since the date of the dissolution within the meaning of the applicable statute.   The motion to modify alimony is hereby denied.

Defendant's Motion for Modification (Motion # 280.00)

This motion concerns the tax exemption allocable to the parties' daughter, which the parties agreed was moot because their daughter now claims herself as an exemption on her own tax return.   The motion was therefore marked off.

Defendant's Motion for Order for Approval and Implementation of QDRO (Motion # 281.00)

Paragraph 20 of the Orders required the plaintiff to transfer to the defendant fifty (50%) percent of his pension from Citizens Bank by a Qualified Domestic Relations Order (“QDRO”).   The judgment further provided that the QDRO was to be prepared by an attorney selected by the defendant, with the cost of the legal fees to be shared equally by the parties.

The defendant testified that she herself, with some assistance from others including bank representatives, prepared the proposed QDRO attached to her present motion.   She explained that she did so because she cannot afford to pay her half of the legal fees for preparation of a QDRO by an attorney.   Be that as it may, the QDRO was not prepared in the manner ordered by the judgment and to which the plaintiff is entitled, and this motion is therefore denied.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.