Gia L. Oei v. John W. Boullie (2013)

MEMORANDUM OF DECISION

The following matters were heard by the court on December 10, 2013.   The findings and orders of the court are set forth below with respect to each motion.

Plaintiff's Motion for Contempt (Motion # 189.00)

The plaintiff seeks a finding of contempt based on the defendant's alleged violation of provisions in a stipulation approved and made an order of the court on February 9, 2011.   In pertinent part, that order states as follows:  “Neither party shall send negative communications (text messages, correspondence, or emails) to the other with no name calling or harassing content.   The tone shall be neutral and it shall address the children or issues related to the children.”

Plaintiff introduced into evidence printed exhibits consisting of voluminous communications, primarily in the form of emails between the parties, dating back to early 2012.   The plaintiff asserts that the communications to her from the defendant, or portions thereof, constitute violations of the above order.   (While the exhibits include highlighting and numerous handwritten notes apparently inserted by the plaintiff for the benefit of the court, the court has ignored those highlights and comments so as to consider the communications in their original, unaltered state.)   The plaintiff further displayed in court a very brief computerized video sent to her by the defendant which consisted of a spoken message delivered by an animated talking monkey.

Defendant does not deny sending the communications in question.   His position is that his comments fairly relate to the couple's children, that he is entitled to state his opinion when he feels that the plaintiff is acting unfairly or improperly regarding them, and that he has done his best to express his concerns properly.   As his own example of the effort he is making, the defendant testified that instead of calling the plaintiff “a narcissist,” which might be considered name calling, he wrote in an email that she was acting in a way “that is typical with narcissists.”   The defendant does not seem to consider the possibility that he could have said neither.

It may be true that the defendant has improved his discourse from the admitted previous use of profanity.   But upon review of the defendant's communications, it is difficult for the court to believe he cannot do better.   In particular, he appears to have gone to great lengths to upset the plaintiff in ways that he believes do not violate the letter of the court order, such as the use of the computerized animated primate.   The court understands the plaintiff's annoyance at many of the defendant's communications.   By the same token, the plaintiff appears to take each statement by the defendant in its worst possible light, and urges the court to do likewise.

While the court does not condone the tenor of many of the defendant's statements, a finding of contempt as to any given communication would require the court to conclude that, as to that statement, the defendant had wilfully violated a clear and unambiguous order of the court.   Given the inherent subjectivity involved in applying the language of the order to the kinds of statements depicted in the emails, the court does not make such a finding.   Therefore the court does not find the defendant to be in contempt.

As a remedial measure, however, the court makes the following additional orders which shall be applicable to the communications between the parties from this point forward, for the purpose of supplementing, clarifying and effectuating the previous orders of February 9, 2011:

1. The prior order that the communications “shall address the children or issues related to the children” is hereby clarified to provide that the communications shall only address such topics.   This order shall not be construed to prohibit typical words of simple greeting or closing customarily used in polite society as a matter of courtesy.

2. The parties shall be permitted to state their good faith disagreement on issues relating to the children.   However, such disagreements shall be stated as concisely as is reasonably possible given the nature and importance of the issue, and in a manner which does not include unnecessary personal comments about the other party or the other party's relatives, friends, or acquaintances.

3. The parties shall not cause any communication to be delivered via, or to be accompanied by, any photograph, video, animation, music, sound, or illustration which is not reasonably necessary to convey information legitimately related to the children's issues.

Defendant's Motion for Modification (Motion # 190.00)

The defendant seeks to modify the existing orders regarding child support payments and the sharing of unreimbursed medical expenses.   The court finds that the defendant has not demonstrated a substantial change in circumstances or other legal basis for the modification requested.   Accordingly, the motion for modification is denied.

Defendant's Motion for Contempt (Motion # 191.00)

Defendant seeks a finding of contempt against the plaintiff for her failure to pay 60% of certain extracurricular activities for the children as required by the judgment of dissolution (as modified by certain postjudgment orders).   Specifically, defendant claims that plaintiff owes him $1,353 as her 60% portion of costs totaling $3,255 which he incurred for the children's skiing and lacrosse activities during the first quarter of 2013.

Plaintiff's position that the parties had out-of-court discussions regarding the handling of these expenses which differed from the court order is supported by the evidence.   The court concludes that her failure to pay the sums in question was the result of her reliance on her understanding of their discussions, and not a wilful violation of a court order.   Therefore, the court does not find her in contempt.

However, as a remedial measure given the apparent breakdown of whatever side understanding the parties may have had, the court hereby orders that the parties shall pay all 2013 extracurricular expenses in accordance with the existing court orders, including the above skiing and lacrosse activities.   The evidence showed that it is the parties' practice to reconcile such expenses on a quarterly basis.   The court orders that at the time of the reconciliation for the fourth quarter of 2013, the parties shall include in the reconciliation any extracurricular expenses incurred by either of them which were not included or not paid in the manner provided by the existing orders for the first three quarters of 2013.   Such reconciliation, and any payment due from one party to the other pursuant thereto, shall be completed by January 31, 2014.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.