Thomas McGann v. Catherine Roy (McGann) (2014)

Memorandum of Decision

The matter before the court is plaintiff's application for rule to show cause to reopen to modify and enforce judgment and to hold the defendant in contempt (post-judgment), # 152, dated July 19, 2013.   The matter was heard on February 23 and 25, 2014.   The plaintiff was represented by counsel and the defendant was self-represented at the proceeding.   Both parties testified and provided exhibits to the court.   From the credible evidence, the following facts are found.

This matter is before the court for the third time on a post-judgment motion regarding educational support orders for the parties' two children in college.   This matter requires findings pursuant to Gen.Stat. § 46b–56c.   The older child is a junior at UConn and the younger child is a sophomore at Smith College.   From the evidence before the court, it can be found that both students are doing well at their respective institutions and that their parents approve of where they go to school.   Both children are under the age of 23 years old and both will remain under that age for all periods of time affected by the court orders entered herein.   Further, both children participate in funding their own respective education, though the amounts of their financial participation was not placed in evidence before the court.   Both parties have asked the court to set an order for this academic year (2013–2014) and a formula for each party's contribution for the next two academic years, 2014–2015 for both children, and 2015–2016 for the senior year of the younger child.   Essentially, the parties are asking the court for a net order without the prerequisite statutory findings.   The court will consider all claims by way of defense to order of payment, or otherwise, that pertain to the necessary findings in the first instance under Gen.Stat. § 46b–56c to be waived by both parties.

The parties' major differences pertain to two major issues that they have placed before the court:

1. Their respective contributions for each of these three years.

2. Whether the defendant fully paid her obligation for academic year 2012–2013 as ordered by the court.

The plaintiff also argues that the court should consider the past and future availability of the American Education Opportunity tax credit to the defendant in fashioning the education support orders for these three years.

The plaintiff has paid all of the funds that were due for this academic year after the defendant was not forthcoming with any sums.   The parties never fully put into evidence the UConn in-state cost as the statute at issue provides for.   The court finds that the parties have acquiesced that the sums herein remaining due are under the cap after considering of payments by the students or on their behalf by third parties.

The plaintiff seeks contribution from the defendant for the following statutorily allowable costs that he paid for 2013–2014:  $18,381 for tuition, room and board, $600 for books and $2,401 for health insurance, all inclusive for both children.   The defendant has offered to pay $2,000 for each of the academic years 2013–14 and 2014–2015.   She has not offered a contribution for the last academic year that will be at issue, 2015–2016, noting she expects the amount due to be about $10,000 and reasons the plaintiff can afford it alone.   The defendant also offered the notion that if the orders are not affordable the child(ren) may be asked to take a year off school so they can earn more money.   To date, she has made no such request;  therefore that is not currently before the court.

The plaintiff seeks reimbursement from the defendant for 40% ($8,555.00) of the academic year 2013–2014 to be paid at the rate of $50.00 per week until paid in full.   The plaintiff's 40% is based upon the percentage calculation of responsibility under a child support income shares calculation.   The court notes that will take 171 weeks or about 3 1/3 years to repay the sum at that rate.   The plaintiff seeks a 60% allocation to himself and 40% allocation to the defendant for the next two academic years as well.

The first education support order in this matter entered on April 20, 2011.   The court (Conway, J.) ordered the defendant to pay $4,008.50 (in two installments) for the academic year 2011–2012, when there was only one child in college.   The court further ordered, “Absent any substantial change in circumstance that should be the presumptive minimum amount the Defendant is responsible for yearly.   But both parties reserve the right to submit [sic] the Court's jurisdiction for a de novo review for the 2012 school year.”   Such a de novo hearing was held.   On June 1, 2012, the court (Kenefick, J.) ordered the defendant to pay (1) $100 per month on a $790.50 arrearage from the education support order for the previous year, for which she was found in willful contempt and she was further ordered to pay $350.00 attorney fees and (2) an education support order for 2012–2013 as follows:  “The Defendant shall apply for parent plus loans in the total amount of $3,000 for James and Theresa for the 2012/2013 school year at Smith College and University of Connecticut.   If she does not qualify for $3,000, she shall apply for and accept the highest amount for which she qualifies up to the $3,000 amount.   Defendant's request to apply for a parent plus loan in the amount of $2,500.00 for James in the fall a payment of $500.00 directly to Plaintiff at the start of the second semester is acceptable to the court.”

The court also ordered that the defendant no longer was required to carry the children on her health insurance, leaving only the plaintiff's health insurance for the children's coverage.

The UCONN bursar sent a check to the defendant in error for refund of overpayment by the plaintiff of $1,432 for the 2011–2012 academic year.   The defendant signed the check back over to UCONN and requested that the college cancel a prospective Stafford loan that the parties' child was to take for the 2012–2013 academic year.   The plaintiff seeks a finding of contempt for this conduct and seeks reimbursement of those funds to be made to him by the defendant, and, an order for repayment of the costs of the bringing of the motion and a modest attorney fee for the same.   The defendant argues she did nothing wrong since all of the funds were used for education of one of the parties' children.   The defendant did give the plaintiff's money to their son, essentially by benefitting him, without the permission of the plaintiff.   Her view was that the parties should be doing whatever was necessary to help their children through college.   The court cannot find this contempt of court because it is not a direct violation of the prior court orders.   The sum however must be repaid to him.

In 2011, the defendant received the benefit of the American Opportunity Tax Credit for the parties' oldest child.  (She claims him as a dependent for tax purposes.)   The tax credit was for $2,500.   This tax credit was not before the court when it ordered the defendant to pay $4,008.50 for the 2011–2012 academic year.   The effect of that tax credit was that the defendant only needed to reach $1,508.50 of other funds to meet the court order.   Of that, she had a $790.50 arrearage as recited above.

Both copies of the defendant's 2012 and 2013 tax returns submitted into evidence reflect no American Opportunity Tax Credit benefit to her.   The plaintiff's counsel argues that she should be ordered to allow the defendant to see if an amended return could be filed for either or both years in hopes that a tax credit can be recognized;  he would then seek to share in that credit.   The defendant objects.   She finds this invasive of her privacy.   The court concurs that it is not appropriate for the court to order this absent an agreement.

Additionally, because the copies of the tax returns provided by the defendant to the plaintiff are not true copies (for instance they have a watermark on them) he requests the court to order the defendant to sign an IRS Form 4506 for the years that the parties have duty of educational support for their children.   The defendant has not objected to this.

Because these children are already in schools that their parents approve of, the court can presume that this statutory requirement has been followed.   Gen.Stat. § 46b–56c.   Further given the testimony, the court finds it more likely than not these parents would have supported their children's education past high school if they had remained an intact family.   The court has not received evidence regarding the funding available to and from the children, only the net dollars from the parents for the current academic year.   Further, as to the current academic year, the motion before the court was filed in a timely manner;  therefore, it is not a motion seeking retroactive orders.   Alianiello v. Alianiello, 2013 WL 6510923 (Conn.Super.) The court has considered the financial circumstances of the parties, particularly as shown in their respective sworn financial affidavits.   The court notes that the base pay of the plaintiff is $1,643.00 gross (plus $41 per week longevity) and the defendant is $1,037.00 gross.   The plaintiff works hard at additional jobs to try to make all of the payments necessary for a parent of two children in college.   He has a summer job, a night job during the school year and does extra tutoring as well.   All of this additional work over and above his full-time job renders approximately $11,160 additional wages per year.

The defendant does some extra work that totals but nowhere near as much as the plaintiff.   Once permissible deductions are taken out, the parties' respective net income are very close to 60% plaintiff;  40% defendant.   Educational support orders require the court to first consider not only the parties' respective income but also their assets and obligations (debts, liabilities, obligations to other dependents, etc).   The plaintiff has about $75,000 more equity in his home than the defendant.   Neither party has significant cash assets of any sort.   The defendant shows herself to have a TSA and an unvested teacher's retirement (which will vest in 2017).   The court judgment shows that she also received an award of a third of the plaintiff's teacher's retirement which she has not listed on her financial affidavit.   The defendant has his remaining share of that retirement and a tax deferred annuity.   Both parties have very modest automobiles.

The plaintiff pays the health insurance premium portion of his health insurance cost that is attributable to the children is $2,406 per year (broken down:  $46.27 per week).   Health insurance is a composite piece of an educational support order.

Presently the plaintiff has $27,627.00 in loans for the children's college.   Presently, the defendant has a $3,286.00 loan balance for the parties' eldest child college.   Each party has other debts, including college the defendant paid for regarding an older child of hers, who is not child of the marriage.

The defendant expresses fear about her ability to survive economically if the educational support order is more than $2,000 per year.   The court finds that she could pay substantially more.   The plaintiff has shouldered the lion's share of the burden to date.

The plaintiff seeks an order of attorney fees and costs and has submitted an affidavit in support thereof.   There is no finding of contempt here.   The court declines to order the fees and costs in the instance of this case, on these facts, after also considering all of the orders entered herein.

Orders including Educational Support Orders

1. The defendant shall repay the plaintiff $8,555.00 for academic year 2013–2014 at the rate of $50.00 per week commencing March 1 and every week thereafter until paid in full.   The plaintiff is entitled to an immediate income withholding order for those payments.   The defendant however shall make the timely payments of the same to the plaintiff until and unless the sum is withheld from her paycheck weekly (or $100.00 bi-weekly).

2. For academic year 2014–2015 and academic year 2015–2016, the plaintiff shall pay 60% and the defendant shall pay 40% of all tuition, room and board (and lab fees) to UCONN and Smith College, after deducting all contributions due from or on behalf of the student (cash contributions, scholarships, grants and loans) as specified by the school in the financial aid package given to that student for the applicable academic year, or the amount actually contributed by the student, whichever is greater, at the time(s) said sums are due and no later.   Said order is capped such that the sums at issue shall not exceed the cap of the cost of UCONN for an in-state student after consideration of the student's contributions and their parties, including loans, scholarships and grants.

3. Until the end of the academic year, 2015–2016, the defendant is responsible for 40% of the health insurance premiums for the children who are still in college, provided said sums when added to the sums ordered in paragraph 2 above do not exceed the UCONN cap referred to in said paragraph.   This is $18.50 per week.   This shall be paid by her at the rate of $18.50 per week commencing March 1 and every week thereafter until paid in full.   The plaintiff is entitled to an immediate income withholding order for those payments.   The defendant however shall make the timely payments of the same to the plaintiff until and unless the sum is withheld from her paycheck weekly (or $37.00 bi-weekly).

4. As between the two parents, the plaintiff is solely responsible for the books costs for the children's college courses.

5. Upon presentation by the plaintiff, the defendant shall execute an IRS Form 4506 in favor of the plaintiff for tax years for any year for which the parties have an educational support order commencing with 2012.

6. The defendant shall repay to the plaintiff the $1,432.00 she essentially gave to the parties' son by cancelling his Stafford loan, payment to be made on the following basis:  she shall pay said sum in full on or before July 1, 2016.

7. If the defendant fails to pay in a timely manner her late payments under any of the preceding orders shall bear interest at the rate of 5% per annum.

8. The motion for contempt is denied.

MUNRO, J.

Munro, Lynda B., J.