Madeline Gregware v. James H. Gregware (2013)

MEMORANDUM OF DECISION

Three postjudgment motions by the Plaintiff were heard on October 31, 2013.   The court's ruling on each is set forth below.   The first two motions were calendared for October 31, 2013;  the third was not calendared but was heard by agreement of the parties.

MOTION FOR CONTEMPT (# 178.00)

The plaintiff seeks a finding of contempt as to three separate issues:  the alleged failure of the defendant to pay his share of unreimbursed medical expenses of the minor children;  the alleged failure of the defendant to pay the cost of their health insurance;  and the alleged refusal of the defendant to pay his share of college education costs for the parties' daughter Haley.   The court will address each of these claims separately.

Unreimbursed Medical Bills

The plaintiff testified, with supporting documentary evidence (Plaintiff's Exhibits 4 through 9, inclusive), that she has paid a total of $5,025.39 to CVS and Walgreens for prescription medication costs for the three children during the period between 2000 and the date of each child's attainment of majority.   She further testified that she has received no reimbursement from the defendant for these expenditures, despite sporadic verbal requests for payment.

The defendant was not provided with a complete set of copies of the charges until June 2013.   He claims that he paid other similar expenses for the children without seeking reimbursement from the plaintiff.   He also testified as to his belief that some of the prescriptions listed on Plaintiff's Exhibits 4 through 9 were picked up and paid for by him.   However, the defendant offered no testimony or evidence as to specific items which he claims to have paid.

The court finds the testimony of the plaintiff on the issue of her payment for the prescription medications in question, and lack of reimbursement from the defendant, to be credible.   The orders of the court contained in the judgment of dissolution dated October 20, 1995 and the modification agreed to and ordered by the court on May 28, 2008 provide that the parties are to split the cost of unreimbursed medical expenses equally.   The court finds that the defendant has not complied with these orders.   However, given the failure of the plaintiff to make demand for all of the expenses as they were incurred, the court does not find the defendant's noncompliance to be willful and does not find the defendant to be in contempt.   Nevertheless, as a remedial measure the court orders the defendant to pay to the plaintiff the sum of $2,512.69, representing one-half of the expenses in question, payable as set forth in the Orders below.

The court notes that the modification of the judgment agreed to by the parties and ordered by the court on May 28, 2008, limited the plaintiff's liability for the expenses enumerated therein to $260 in any calendar year.   As the plaintiff made no claim at the hearing that this clause obligated the defendant to pay more than half of the prescription costs in any given year, the court has not applied that annual limit in computing the amount due the plaintiff.

The defendant urges the court to deny a portion of the plaintiff's claim for the above reimbursement under a theory of laches, given the period of time that has elapsed from the date the earliest expenses were incurred.   The defendant suggests the court apply the equivalent of a contract statute of limitations to the expense reimbursement claim.

The court concludes that the application of the doctrine of laches is not warranted in this case.   The passage of time alone does not give rise to a claim of laches;  rather, the party urging the application of the doctrine must also demonstrate that the delay is inexcusable and has prejudiced him.

In the present case, no evidence was admitted on which the court could have found that the plaintiff was prejudiced by the defendant's failure to seek payment for a number of years or that she changed her position in reliance on the defendant's actions.   Further, no evidence was presented that the delay was inexcusable.   The only evidence presented to the court with regard to the laches defense was that the defendant waited for seven to eight years to file the motion for contempt.   Accordingly, the court improperly concluded that the defendant's claim for reimbursement for extracurricular activities expenses was barred by laches.

Carpender v. Sigel, 142 Conn.App. 379, 387 (2013).

The situation in the present case is similar to that described by the Appellate Court in Carpender v. Sigel.   The court finds that the defendant failed to demonstrate that the plaintiff's delay in asserting her claim for reimbursement was inexcusable or that he has been prejudiced by the delay.

Health Insurance

The court order of May 28, 2008 required the defendant to provide and pay the full cost of health insurance for the parties' minor children.   The parties stipulated at the hearing that during the period from January 1, 2012 to May 31, 2013 the children were removed from the defendant's health insurance coverage and carried by the plaintiff on her work-related health insurance policy.   This was done as the result of discussion among the parties;  the court therefore finds that the defendant did not willfully violate the court order and does not hold him in contempt.

However, that leaves the question of the ultimate financial responsibility for the cost of the insurance.   The plaintiff paid the full cost of the children's coverage during that period by way of payroll deductions.

Defendant points to the plaintiff's statement in an email (Defendant's Exhibit A) that adding the children to her policy would not increase her cost.   The court credits the plaintiff's explanation that she meant that since two of the children were already on her plan at the time she was already paying for family coverage, and that adding another child would not further increase the cost.   (Prior to January 1, 2012 it appears that two of the children were being carried on both parents' plans.   Under the 2008 order the plaintiff had the option of carrying the children on her policy, in addition to their coverage by the husband, with this additional coverage to be at her own expense.)   Plaintiff's Exhibit 10 shows that, during the period the defendant did not insure the children, the plaintiff's cost of doing so exceeded by $99.29 per biweekly pay period the cost of coverage for herself alone.

While the court does not find the defendant in contempt as to this issue, the order of the court was clear to the effect that he was solely responsible for the payment for health insurance during the period in question.   Therefore, the court orders as a remedial measure that the defendant pay to the plaintiff the sum of $3,375.86, payable as set forth in the Orders below.   Said amount represents the total of two payroll deductions of $99.29 per month for the 17–month period during which the plaintiff paid for the children's coverage while the defendant did not insure them.

College Education Costs

Based on the evidence, including the plaintiff's own testimony, the court finds that the defendant is not in violation of the court order that he share equally in the college education costs of Haley, the only child mentioned in the motion for contempt as to this issue.   The court also rejects the plaintiff's claim for contempt to the extent it is based on an alleged side agreement of the parties that the defendant would pay two-thirds of the cost of college education;  for purposes of contempt, the plaintiff must rely on the clear provisions of a court order rather than any different agreement of the parties.   For these reasons, the court does not find the defendant in contempt as to this issue and finds no remedial orders to be necessary or appropriate.

MOTION FOR MODIFICATION (# 179.00)

The dissolution agreement of the parties, as incorporated into the judgment of dissolution dated October 20, 1995, includes a provision that “each party will pay for half of each child's undergraduate college expenses.”   That provision was modified by the agreement of the parties to provide that as to the parties' eldest child, Andrew, the defendant would pay two-thirds and the plaintiff one-third of such expenses under certain circumstances;  the agreement of modification was approved by the court and entered as an order May 28, 2008.

The present motion seeks the further modification of the college education cost provision of the judgment to make the defendant solely responsible for the costs incurred with respect to the parties' youngest child, Haley.   The plaintiff argues that the modification is appropriate because the defendant, after the entry of the original judgment, came into possession and control of funds left by his deceased relative for the children's education, which he placed into Section 529 education accounts for each child.   The defendant objects to such a modification.

The parties' 1995 dissolution agreement and judgment predate the adoption of Connecticut's present statute on post-majority educational support, which took effect October 1, 2002.   The current statute was prospective only in operation.   See Fils–Aimes v. Fils–Aimes, 2002 Ct.Sup. 10789 (2002).

The statute applicable to the parties' agreement on the sharing of post-majority college education expenses at the time of 1995 judgment was Section 46b–66 of the Connecticut General Statutes, providing that there could be no order for post-majority support unless there was a written agreement to that effect by the parties.   In the absence of such an agreement the court was without jurisdiction to order support beyond the age of majority.  Lowe v. Lowe, 47 Conn.App. 354, 357 (1997).

Likewise, the modification of the 1995 order for post-majority support also depends on the written agreement of the parties.  Hirtle v. Hirtle, 217 Conn. 394, 397 (1991).  Section 46b–66 did not confer on the court any authority to impose or to modify an order for such support in the absence of an agreement of the parties, until the amendment of the statute to make post-majority support agreements entered into on or after July 1, 2001 modifiable.   While an order approving an agreement of the parties was subsequently entered in 2008, that order was limited to the college expenses of Andrew, which are not presently at issue.

In the present case, the applicable statute permits the court to enforce the 1995 order which was entered with the agreement of the parties.   However, neither the statute nor the applicable case law authorizes the court to modify the 1995 judgment as to post-majority support without a written agreement of the parties.   For that reason, the plaintiff's motion to modify is denied.

MOTION FOR CONTEMPT (# 180.00)

The final motion concerns the plaintiff's claim that the defendant failed to provide records relating to the funds left by a deceased relative of the defendant and placed by the defendant into Section 529 college accounts.   The defendant was subpoenaed to bring such records to court on July 16, 2013, the date on which the first two motions above were originally scheduled to be heard.   It is undisputed that the defendant failed to produce the requested records on that date.   Due to the anticipated length of the hearing the matter did not go forward on July 16, 2013, but rather was rescheduled for October 31, 2013.

On October 28, 2013, still not having received the requested documents, the plaintiff filed the present motion for contempt.   Documents purporting to comply with the request were finally emailed to the plaintiff's counsel the afternoon of October 30, 2013, the day before the hearing.

Counsel for the defendant argues that the documents requested were ultimately of limited relevance to the motions, which may be true given the court's decision on the modifiability of the 1995 post-majority educational support order.   However, the defendant was not entitled to withhold the subpoenaed records based on his own evaluation of their admissibility.   He could have sought a protective order or other relief from the subpoena after it was served, but he did not do so.

The court finds that the defendant failed to comply with a proper subpoena by failing to produce the requested documents on July 16, 2013.   The court has the authority to impose sanctions for the defendant's failure to comply with the production request set forth in the subpoena and finds it appropriate to do so in this case.   See Connecticut Practice Book Section 13–14.

The court finds that the hourly rate at which the plaintiff is compensating her attorney is $225 and that said rate is reasonable;  that a reasonable amount of time for the drafting and filing of the motion is one hour;  and that the hearing on the motion for contempt was approximately one hour in duration.   Accordingly, as a sanction for his noncompliance with the subpoena the court orders the defendant to pay to the plaintiff the equivalent of said attorneys fees for two hours, or the sum of $450.00, payable as set forth in the Orders below.

ORDERS

The total amount payable by the defendant to the plaintiff under the above rulings is $6,338.55, representing the amounts due for unreimbursed medical expenses ($2,512.69), health insurance premiums ($3,375.86), and sanctions ($450.00).   In view of the length of time over which much of the obligations accrued, rather than ordering payment in one lump sum, the court orders the defendant to pay the total of $6,338.55 to the plaintiff in ten consecutive monthly installments of $633.86 each on or before the first day of each month commencing December 1, 2013;  provided, that if any such installment is paid more than ten days late, the entire remaining unpaid balance shall become due and payable upon the written demand of the plaintiff.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.