Tracey Fair v. Thomas Fair (2014)

MEMORANDUM OF DECISION Re Plaintiff's Post–Judgment Motion for Contempt and Sanctions (No. 117.00)

This matter is before the court on the plaintiff's post-judgment motion for contempt and sanctions wherein the plaintiff alleges that the defendant, her former husband, failed to comply with various financial orders entered in connection with the parties' divorce decree.   The plaintiff seeks orders for compliance and an award of attorneys fees.   A hearing was held on the motion on December 2, 2013.   Both parties testified at the hearing and exhibits were introduced into evidence.   Following the hearing, the plaintiff submitted proposed orders to the court on December 10, 2013.   The defendant submitted proposed orders on December 16, 2013.   Having considered all of the credible evidence and the relevant case law, the court finds as follows.

I

The marriage of the parties was dissolved by the court on June 8, 2010.   The parties entered into a settlement agreement/stipulation to judgment which was incorporated into the divorce judgment.   In the settlement agreement, the parties agreed, and the court ordered, inter alia, as follows:

1. that the plaintiff shall have exclusive use and occupancy of the jointly owned marital home located at 35 Valley Road, North Branford, Connecticut for a period of nine years during which time the defendant shall be solely responsible for timely paying the mortgage, home equity line, insurance, taxes and repairs associated with the property (paragraph 7.1);

2. that the defendant shall make diligent efforts to refinance the marital home for the purpose of removing the plaintiff's name from the note and mortgage associated with the property (paragraph 7.4);

3. that with respect to the business known as TJS Electronics and Peripherals the defendant shall pay to the plaintiff the sum of $20,000 in six installments ($3,333.33 each) by January 31st of each year, with the first payment being due on January 31, 2012 (paragraph 12.3);

4. that the defendant shall transfer two retirement accounts to the plaintiff by way of a Qualified Domestic Relations Order:  a First Investors Account in the approximate amount of $174,411 and an RBC Account in the approximate amount of $35,000 (paragraph 11.1);

5. that the defendant shall maintain his two existing life insurance policies, one in the amount of $300,000 and the other in the amount of $250,000, naming the plaintiff as the sole beneficiary thereunder for so long as he has a financial obligation under the divorce decree to the plaintiff and/or the parties' minor children (paragraph 17.2);

6. that the defendant shall pay child support to the plaintiff in the amount of $300 per week (paragraph 3.2);

7. that the defendant shall be responsible for payment of unreimbursed medical expenses in accordance with the child support guidelines (paragraph 3.2);  and

8. that each party will retain one-half of the existing college funds for the minor children and that such funds shall be used for the benefit of the children until such time as the youngest child reaches the age of 23 years;  thereafter any remaining funds shall be divided equally by the parties (paragraphs 13.2 and 13.3).

On September 20, 2012, the plaintiff filed the instant motion for contempt.   The motion was scheduled for hearing on numerous occasions;  however, at each court appearance, the parties either entered into an agreement which was approved by the court or the court entered an interim order.   The matter was repeatedly continued to a series of later dates.   When the motion finally appeared on the court's docket on December 2, 2013, the parties had run out of agreements and the court conducted a full evidentiary hearing on the motion.   The salient provisions of the agreements and orders leading up to the eventual evidentiary hearing are as follows:

1. Agreement and Order dated December 12, 2012 (Item No. 122.00):  The defendant agreed that he owed the plaintiff the sum of $13,359 in past due child support;  that he would pay the arrearage in full upon the sale of certain commercial property the parties jointly own located at 15 Research Drive, Branford, Connecticut;  and that the child support arrearage would be secured by a mortgage on the Research Drive property pending the sale of that property.

2. Agreement and Order dated January 2, 2013 (No. 123.00):  The defendant agreed to list the Research Road property for sale.

3. Agreement and Order dated May 8, 2013 (No. 126.00):  The defendant agreed that he owed the plaintiff the sum of $19,659 in past due child support;  that he would pay the arrearage in full upon the sale of the Research Drive property;  that the child support arrearage would be secured by a mortgage on the Research Drive property;  that the parties would lower the listing price on the Research Drive property;  and that upon the sale of the Research Drive property the defendant would pay all financial obligations due the plaintiff and pay off the mortgage on the marital home.

4. Agreement and Order dated August 28, 2013 (No. 127.00):  The defendant agreed that he owed the plaintiff the sum of $24,059 in past due child support;  that he would pay the arrearage in full upon the sale of the Research Drive property or sooner if so ordered by the court;  that the child support arrearage would be secured by a mortgage on the Research Drive property;  that the parties would lower the listing price on the Research Drive property;  and that the defendant would be responsible for the payment of all attorneys fees incurred by the plaintiff in the preparation and prosecution of the plaintiff's September 20, 2012, motion for contempt.

5. Order dated October 30, 2013:  The plaintiff shall be solely responsible for marketing and selling the Research Drive property and keep the defendant updated on the status.

II

“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.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001).  “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).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful ․ [A] contempt finding is not automatic and depends on the facts and circumstances underlying it.”  (Citations omitted;  internal quotation marks omitted.)  Dickinson v. Dickinson, 143 Conn.App. 184, 188–89, 68 A.3d 182 (2013).  “[I]t is well settled that the inability of [a] defendant to obey an order of the court, without fault on his part, is a good defense to the charge of contempt ․ The contemnor must establish that he cannot comply, or was unable to do so ․ It is [then] within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure.”  (Citation omitted;  internal quotation marks omitted.)  Ahmadi v. Ahmadi, 294 Conn. 384, 398, 985 A.2d 319 (2009).

However, “even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.   Such court action, however, must be supported by competent evidence.”  (Internal citations omitted.)  Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988) (although party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

The defendant had notice of each of the orders referenced in Section 1 above.   The court will address each of the plaintiff's claims in the order in which they were presented in her post-argument claims for relief.¹

A. Marital Home—Payments

The court's order was clear and unambiguous in its direction for the defendant to timely pay the mortgage, home equity line, insurance, taxes and repairs associated with the marital home.   The undisputed evidence before the court is that the defendant failed to comply with the court's order in that he has not paid the mortgage on the marital home since November or December 2011, the mortgage is currently in default, and the lender has commenced foreclosure proceedings.   The defendant failed to establish that he was unable to comply with the court's order.   The court finds the defendant's noncompliance with the court's order was wilful.   The defendant is in contempt of the court's order to timely pay the mortgage on the marital home.

B. Marital Home—Refinance

The court's order was clear and unambiguous in its direction for the defendant to make diligent efforts to refinance the marital home for the purpose of removing the plaintiff's name from the note and mortgage associated with the property.   However, the evidence before the court establishes that the plaintiff is not a signatory to the mortgage note on the marital home.   The defendant cannot be held in contempt for failing to comply with an order that is incapable of being complied with.   Accordingly, the court finds that the defendant is not in contempt of the court's order to use diligent efforts to refinance the marital home for the purpose of removing the plaintiff's name from the note and mortgage associated with the property.

C. Payment from TJS Electronics and Peripherals

As noted, supra, the divorce decree incorporated by reference the parties' settlement agreement.   Paragraph 12.3 of the agreement provides that upon payment to the plaintiff of the aggregate sum of $20,000 the defendant would have exclusive ownership of the business known as TJS Electronics and Peripherals and the plaintiff would waive any claim or interest in the business.   However, the agreement is unclear and ambiguous as to the source of funds for the payments to be made to the plaintiff.   On the one hand, the agreement can be read to require that the payments are to be made by the business.   On the other hand, the agreement can be read to require that the payments are to be made by the defendant, irrespective of the source of those funds.   The undisputed evidence before the court is that TJS Electronics and Peripherals went out of business in 2011, more than a year before the first installment payment was due to the plaintiff.   The defendant testified credibly that he believed the payments were to be made by the business and not by him personally.   Because the court's order regarding the source of funds for the payments to be made to the plaintiff is unclear and ambiguous, the court finds that the defendant is not in contempt of the court's orders for failing to make the installment payments otherwise due the plaintiff on January 31, 2012 and January 31, 2013.

D. Retirement Accounts

The court's order was clear and unambiguous in its direction for the defendant to transfer two retirement accounts to the plaintiff by way of a Qualified Domestic Relations Order:  a First Investors Account in the approximate amount of $174,411 and an RBC Account in the approximate amount of $35,000.   There is no evidence before the court that this transfer did not occur.   Rather, the plaintiff claims that the defendant impermissibly removed approximately $15,000 from one of the accounts before those accounts were transferred to her.   However, both the plaintiff and the defendant testified that the defendant asked the plaintiff if he could borrow $15,000 from one of the retirement accounts and that the plaintiff consented to the loan.   The defendant's receipt of monies from the referenced retirement accounts with and upon the consent of the plaintiff does not constitute a violation of the court's orders.   Accordingly, the court finds that the defendant is not in contempt of the court's orders regarding transfer of the retirement accounts to the plaintiff.

E. Life Insurance Policies

The court's order was clear and unambiguous in its direction for the defendant to maintain two existing life insurance policies, one in the amount of $300,000 and the other in the amount of $250,000, naming the plaintiff as the sole beneficiary thereunder for so long as he has a financial obligation under the divorce decree to the plaintiff and/or the parties' minor children.   The undisputed evidence before the court is that the defendant failed to comply with the court's order in that he did not maintain the referenced life insurance policies.   The defendant stopped paying the premium on one policy and the other policy terminated when the credit card account with which the policy was associated was closed.   Moreover, the defendant did not obtain any replacement policies and made no effort to secure new life insurance.   The defendant failed to establish that he was unable to comply with the court's order.   The court finds that the defendant's noncompliance with the court's order was wilful and that the defendant is in contempt of the court's order to maintain in existence two life insurance policies with an aggregate benefit of $550,000, naming the plaintiff as the sole beneficiary thereunder.

F. Child Support

The court's order was clear and unambiguous in its direction for the defendant to pay child support to the plaintiff in the amount of $300 per week.   There was insufficient evidence presented to the court as to whether the defendant made any child support payments in 2010.   However, the defendant readily admits that he made minimal child support payments in 2011 and 2012, and that he made no payments in 2013.

On three separate occasions, the parties stipulated and agreed that the defendant owed a sum certain in past due child support:  (i) $13,359 as of December 12, 2012;  (ii) $19,659 as of May 8, 2013;  and (iii) $24,059 as of August 28, 2013.   In accordance with the parties' agreements and the court's orders, the latter sum is now secured by a mortgage on the Research Drive property.   At the evidentiary hearing on December 2nd the plaintiff claimed that the child support arrearages to which she had previously agreed were inaccurate and that the actual arrearage through December 2, 2013, is $47,317.   The court finds that there is insufficient evidence to support the arrearage amount now claimed due by the plaintiff.   Relying upon the August 28, 2013, agreement and order, and adding the arrearage that accrued until the date of the evidentiary hearing (14 weeks x $300 per week), the court finds that the outstanding child support arrearage as of December 2, 2013, is $28,259 ($24,059 + $4,200).

Based upon the credible evidence before it, the court finds that the defendant failed to comply with the court's order to pay child support to the plaintiff in the amount of $300 per week.   The defendant failed to establish that he was unable to comply with the court's order.   The court finds that the defendant's noncompliance with the court's order was wilful and that the defendant is in contempt of the court's order to pay child support to the plaintiff.

G. Unreimbursed Medical Expenses

The court's order was clear and unambiguous in its direction to the defendant that he shall pay unreimbursed medical expenses in accordance with the child support guidelines.   The child support guidelines worksheet at the time of dissolution reflects that unreimbursed medical expenses were to be apportioned equally (50/50) between the parties.   The undisputed evidence before the court establishes that the defendant failed to comply with the court's order in that he has not paid his one-half share of certain unreimbursed medical expenses for the parties' minor children.   However, the court further finds that the defendant's failure to comply with the court's order was not wilful because the plaintiff did not provide the defendant with invoices or otherwise seek reimbursement from him for the medical expenses she paid on behalf of the minor children.   Accordingly, the court finds that the defendant is not in contempt of the court's order regarding payment of unreimbursed medical expenses.

H. College Funds for the Minor Children

The court's order was clear and unambiguous in its direction to the parties that each would retain one-half of the existing college funds for the minor children and such funds shall be used only for the benefit of the children until such time as the youngest child attains the age of 23 years.   At the time of dissolution, the aggregate balance of the minor children's college fund accounts was $102,000.   The undisputed evidence before the court is that the defendant depleted the one-half portion of the children's college fund accounts that he was ordered to retain for the minor children's future use and benefit.   The defendant failed to establish that he was unable to comply with the court's order.   The court finds that the defendant's noncompliance with the court's order was wilful.   The defendant is in contempt of the court's order to retain one-half of the minor children's college funds for their future use and benefit.

I. Attorneys Fees

The defendant previously agreed, and the court ordered, that the defendant would pay all attorneys fees incurred by the plaintiff in the preparation and prosecution of the instant motion for contempt.   There defendant has provided the court with no basis to relieve him from this obligation.

In her post-argument claims for relief, the plaintiff seeks an award of $12,043 for attorneys fees and costs incurred in connection with the preparation and prosecution of the motion.   However, at the December 2, 2013, hearing, the plaintiff testified that she had incurred attorneys fees and costs in the amount of $10,093.50. There is insufficient evidence before the court from which it could find that the plaintiff has incurred attorneys fees and costs in an amount greater than that to which she testified during the December 2nd hearing.   Accordingly, the court finds that the defendant is liable to the plaintiff for the payment of $10,093.50 for attorneys fees and costs she incurred in connection with the preparation and prosecution of the instant motion for contempt.

III

The plaintiff's motion for contempt is granted in part and denied in part.   Having found the defendant in contempt of the court's orders as set forth above, and in the exercise of its discretionary authority, the court hereby orders as follows.

1. Marital Home—Payments:  The defendant previously agreed and the court previously ordered that the defendant shall pay off the mortgage on the marital home from the proceeds of the sale of the Research Drive property.   The court orders further that the defendant shall make diligent efforts to reinstate the mortgage on the marital home, and such efforts shall include selling or obtaining financing for the Research Drive property.   If the mortgage has not been reinstated, the defendant shall pay off the mortgage on the marital home upon the earlier of the sale or financing of the Research Drive property.

2. Life Insurance:  The defendant shall make diligent efforts to obtain life insurance in the amount of $550,000, naming the plaintiff as sole beneficiary for so long as he has a financial obligation under the divorce decree to the plaintiff and/or the parties' minor children.   The defendant shall provide the plaintiff with copies of all applications for said insurance and any and all responses to said applications and/or copies of any and all insurance policies that are issued as a result of said applications for insurance.

3. Child Support:  The additional child support arrearage owed to the plaintiff by the defendant that accrued from the period August 28, 2013, to December 2, 2013, in the amount of $4,200 shall be evidenced by a promissory note, executed by the defendant and made payable to the plaintiff.   The defendant shall secure the note with a mortgage on the Research Drive property.   If not sooner paid by the defendant, the note shall become due and payable upon the earlier of the sale or financing of the Research Drive property.

4. Unreimbursed Medical Expenses:  The defendant shall pay the plaintiff 50% of all properly documented unreimbursed expenses incurred on behalf of the minor children.   The plaintiff shall provide the defendant with sufficient documentation so that he can reasonably determine the time, cost and nature of the services provided.   If the parties are unable to agree on the expenses to be reimbursed and the payment terms for such expenses, either party may file a motion with the court seeking further orders regarding payment of said expenses.

5. College Funds for the Minor Children:  The defendant shall execute a promissory note payable to the plaintiff in the amount of $51,000.   The defendant shall secure the note with a mortgage on the Research Drive property.   The note shall become due and payable upon the earlier of the sale or financing of the Research Drive property.   The plaintiff shall use the proceeds of the note to pay the minor children's college expenses until such time as the youngest child attains the age of 23 years.   If any funds remain in the account after the youngest child attains the age of 23 years, such funds shall be divided equally between the parties.

6. Attorneys Fees:  The defendant shall execute a promissory note payable to the plaintiff in the amount of $10,093.50.   The defendant shall secure the note with a mortgage on the Research Drive property.   If not sooner paid by the defendant, the note shall become due, and payable upon the earlier of the sale or financing of the Research Drive property.

7. The obligations ordered herein to be secured by a mortgage on the Research Drive property may be evidenced by separate promissory notes or by one promissory note in the aggregate amount of $66,200.

8. This matter is continued to April 2, 2014, to monitor the defendant's compliance.

9. If the defendant fails to comply with these orders, the court may order other remedies including but not limited to the imposition of interest, lump sum payments and incarceration as a result of wilful noncompliance.

(MORGAN, J.)

JUDGE

FOOTNOTES

FN1. The plaintiff's motion also alleges that the defendant failed to comply with paragraph 7.7 of the parties' settlement agreement.   However, as this claim was not addressed in the plaintiff's post-argument claims for relief, the court considers the claim abandoned and will not address it in this decision..  FN1. The plaintiff's motion also alleges that the defendant failed to comply with paragraph 7.7 of the parties' settlement agreement.   However, as this claim was not addressed in the plaintiff's post-argument claims for relief, the court considers the claim abandoned and will not address it in this decision.

Morgan, Lisa K., J.