Erik Johansson v. Geovannia Johansson (2014)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR CONTEMPT RE CHILD SUPPORT, UNREIMBURSED MEDICAL EXPENSES AND WORK–RELATED CHILD CARE EXPENSES, POST–JUDGMENT

On December 31, 2013, the defendant Geovannia Johansson filed an application for an order of hearing and notice (# 155.00) and a motion for contempt, postjudgment, claiming that the plaintiff Erik Johansson had failed to pay child support, unreimbursed medical expenses, and work-related child care expenses (# 155.01).   For the reasons set forth below, the defendant's motion for contempt, postjudgment, is granted in part and denied in part.

I

The plaintiff and the defendant are the parents of one child, Hannah Sophia Johansson, born on August 2, 2002.   They are not married.   Since May 5, 2003, when the plaintiff filed a complaint seeking joint legal and physical custody of Hannah and reasonable visitation, the parties have regularly litigated custody, visitation, and child support issues.

On May 17, 2010, the parties entered into a stipulation (the May 2010 stipulation) addressing, inter alia, accrued and unpaid child support (# 140.00).   The May 2010 stipulation provided that the child support arrearage was $7,500, and that the plaintiff would make the following payments toward the arrearage:  $1,500 by June 30, 2010, and $1,000 by August 31, 2010.   The plaintiff also agreed to pay the defendant $100 weekly, beginning May 17, 2010, $73 of which would be applied to child support and $27 of which would be applied to the arrearage.   The child support payments for any week during which Hannah was with the plaintiff would be applied in full to the arrearage.   The May 2010 stipulation was approved and so ordered by the court (Malone, J.).

II

The parties were before the court on February 1, 2014 on the defendant's motion for contempt, postjudgment.   Both parties were represented by counsel.   The court heard testimony from the parties and reviewed the exhibits that were admitted into evidence.

The defendant testified that, pursuant to the May 2010 stipulation, the plaintiff timely made the first payment toward the arrearage, in the amount of $1,500.   The plaintiff failed to make the second payment on the arrearage, in the amount of $1,000, that was due on or before August 31, 2010.   This payment is still due and owing.   In addition, the plaintiff has not paid the defendant $100 per week as agreed in the May 2010 stipulation.   The defendant said that the plaintiff occasionally gave her cash, totaling approximately $1,500, but has not otherwise paid any child support since May 2010.

The defendant said that the plaintiff recently began to contribute to Hannah's swimming lessons and karate classes.   The defendant testified that the plaintiff had paid the karate studio directly for the past three months, and he had deposited money into her checking account for Hannah's swimming lessons and swim meets, beginning in September 2013.

The defendant stated that the child support guidelines worksheet filed with the court in May 2010 provided that the plaintiff was to be responsible for 23 percent of Hannah's unreimbursed medical expenses and any work-related childcare costs.   She said that she had not previously asked the plaintiff to pay 23 percent of the unreimbursed medical expenses because she thought it would be a “waste.”   She acknowledged that the plaintiff had paid half of the $150 co-pay when Hannah was in the emergency room recently.   The defendant wanted him to pay 23 percent of Hannah's health insurance premiums and unreimbursed medical expenses going forward.

The defendant indicated that she had no work-related child care expenses at that time, because Hannah's after-school program was free.   She said that the plaintiff had given Hannah $50 for her school lunch account on two occasions.

The defendant said that the plaintiff had taken Hannah on vacation a few times since his release from prison.   They had been to North Carolina, Florida, and New Hampshire.   She reported that the- plaintiff had given Hannah a laptop for Christmas, and he had taken her out with three or four of her friends to celebrate her birthday.

The defendant testified that the plaintiff was previously in the construction business, but she was not sure whether he was working in construction at the present time.   She said that the plaintiff used to sell marijuana, for which he had been arrested and incarcerated.

The plaintiff explained that he was a licensed medical marijuana caregiver in the state of Rhode Island when he was arrested by the federal authorities.   He said that he first became involved in the medical marijuana “ministry” when his father was suffering from trigeminal neuralgia.   According to the plaintiff, his father made a miraculous recovery once he began to use medical marijuana.   The plaintiff testified that he and other patients and growers formed a mini-collective to provide medical marijuana.   He said that he earned less than he had made when he worked in construction, but he made enough to cover his expenses.

The plaintiff testified that he was arrested in September 2010.   Following his arrest, he said that the government seized all of the construction equipment that he owned, including a dump truck, trailers, a generator, compressors, and welders.   The plaintiff also lost all of his hand tools, power tools, and pneumatic tools.   He said that without his tools and equipment, he would not be able to find work as a contractor or even as a skilled laborer.

The plaintiff was released from federal prison to a half-way house in December 2012, and he finished serving his sentence on January 5, 2013.   Since that time, he has done some construction jobs and miscellaneous handyman-type work for friends.   He expected that he would have some construction work in the coming months, because the market was improving.

The plaintiff is currently living in a two-family house.   He does repair work on the house in lieu of paying rent.   He receives food stamps each month.   He is also the primary caregiver for his father, who has been living with him since May 2013.   The plaintiff's father assists him financially on occasion.   The plaintiff acknowledged that his father is visiting assisted living facilities at the present time.

The plaintiff said that he had purchased the laptop for Hannah on eBay for $100.   He testified that his father had paid for them to go to Florida.   The plaintiff explained that he had a barter arrangement with his attorney to cover his legal fees.

The plaintiff testified that he had paid the $7,500 child support arrearage in full in 2010.   He said that he had lost all of the financial records that he kept when he lived in Rhode Island.   The plaintiff confirmed that he had deposited money for Hannah into the defendant's checking account.   He said that he had made cash payments totaling $2,500 to $3,000, not $1,500 as the defendant had claimed.

The plaintiff also testified that he could not pay child support when he was in prison, because he worked only briefly and was paid just 17 cents an hour.   He said that he had not intentionally failed to pay child support.

III

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.”  (Citation omitted;  internal quotation marks omitted.)  Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992).   “Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts ․ Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt ․” (Citations omitted;  internal quotation marks omitted.)  In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007).   If a court order is found to be sufficiently clear and unambiguous, the court must then determine whether a violation of the court order was willful or excused by a good faith dispute or misunderstanding.   See Eldridge v. Eldridge, 244 Conn. 523, 526–27, 710 A.2d 757 (1998).

The parties' May 2010 stipulation was approved and so ordered by the court (Malone, J.) on May 17, 2010.   The orders for payment of child support and the child support arrearage were clear and unambiguous in providing that the plaintiff was to make two payments, totaling $2,500, toward the $7,500 child support arrearage, and that the plaintiff was to pay the defendant $100 each week, commencing May 17, 2010, of which $73 would be applied to the current child support obligation and $27 would be applied to the balance of the arrearage.

The court does not credit the plaintiff's testimony that he paid the $7,500 arrearage in full.   The court credits the testimony of the defendant that the plaintiff, after timely making the first payment of $1,500, ceased to comply with the May 2010 stipulation.   The court finds that the plaintiff did not make the second payment toward the arrearage in the amount of $1,000, and he did not pay $100 weekly to the defendant.   The court also finds that the plaintiff occasionally deposited funds in the defendant's checking account, and these deposits totaled approximately $1,500 as of the hearing date.¹

The plaintiff intentionally failed to comply with the terms of the May 2010 stipulation after he made the initial $1,500 payment toward the child support arrearage.   The plaintiff's failure to pay child support from May 17, 2010 to date, as well as to make payments toward the balance of the child support arrearage, was and continues to be willful.

Accordingly, the court finds the plaintiff in contempt for his failure to pay child support and to retire the child support arrearage in accordance with the terms of the May 2010 stipulation, as ordered by the court.   As of the hearing date, the child support arrearage was $18,808, comprised of the following:  $73 per week for 196 weeks (from May 17, 2010 to February 1, 2014), representing accrued and unpaid child support since May 17, 2010, less the $1,500 that the plaintiff deposited into the defendant's checking account, and $6,000, representing the $7,500 arrearage as of May 17, 2010, less the initial payment of $1,500 toward the arrearage.²  This amount remains due and owing to the defendant.

General Statutes § 46b–87 provides in pertinent part that “[w]hen any person is found in contempt of an order of the Superior Court entered under section 46b–60 to 46b–62, inclusive, 46b–81 to 46b–83, inclusive, or 46b–86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt ․” General Statutes § 46b–87.  “Once a contempt has been found, § 46b–87 establishes a trial court's power to sanction a noncomplying party through the award of attorneys fees ․ Pursuant to § 46b–87, that sanction may be imposed without balancing the parties' respective financial abilities.”  Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (Conn.1997).

An award pursuant to General Statutes § 46b–87 may be appropriate here.   If the defendant is seeking such an award, the defendant shall submit a detailed affidavit of the attorneys fees and costs that she has incurred in this contempt proceeding, and a hearing will be scheduled thereafter.

IV

The defendant is also seeking an order directing the plaintiff to pay 23 percent of Hannah's unreimbursed medical expenses because the child support guidelines worksheet furnished to the court on May 17, 2010 indicated that the plaintiff's share of such expenses was 23 percent.   The defendant is also asking the court to order the plaintiff to pay 23 percent of the health insurance premiums for Hannah.   Upon reviewing the court file in this case, however, the court has not located an order of the court in which the plaintiff was found to be responsible for 23 percent of Hannah's unreimbursed medical expenses.   Before the court will entertain a motion for an order allocating Hannah's unreimbursed medical expenses or her health insurance premiums, the parties must provide a current child support guidelines worksheet and updated financial affidavits.   The matter can then be scheduled for a hearing.

V

The court has fully considered the applicable statutes, including General Statutes §§ 46b–56, 46b–84 and 46b–87, well as the evidence, the relevant case law, the demeanor and the credibility of the witnesses, and the arguments of counsel, in making the following findings and in reaching the decisions reflected in the orders that issue below.

With respect to the defendant's motion for contempt, postjudgment, the court finds that:

1. The plaintiff had notice of the orders with respect to payment of child support and the child support arrearage that were set forth in the May 2010 stipulation and ordered by the court on May 17, 2010.

2. The child support order was clear and unambiguous in directing that the plaintiff was to pay the defendant $100 weekly, beginning May 17, 2010, $73 of which would be applied to child support.

3. The child support arrearage order was clear and unambiguous in directing that:  (a) the plaintiff was to pay $1,500 toward the arrearage by June 30, 2010;  (b) the plaintiff was to pay $1,000 toward the arrearage by August 31, 2010;  and (c) $27 of each of the plaintiff's $100 weekly payments to the defendant was to be applied to the arrearage.

4. The plaintiff has failed to comply with the child support order in that he has not paid the defendant $100 weekly, beginning May 17, 2010, $73 of which was to be applied to child support.

5. The plaintiff has failed to comply with the child support arrearage order in that he has not made the $1,000 payment toward the arrearage, and he has not paid the defendant $100 weekly, $27 of which was to be applied to the arrearage.

6. The plaintiff's noncompliance was and continues to be willful.

7. As of the hearing date, the child support arrearage was $18,808.

Accordingly, the defendant's motion for contempt, postjudgment is GRANTED.   It is hereby ORDERED as follows:

1. The plaintiff shall pay to the defendant the child support arrearage due as of the February 1, 2014 hearing, in the amount of $18,808, in weekly installments of $60, commencing on March 24, 2014.

2. Any child support arrearage that accrued between the hearing date and the date of this decision shall be paid in five equal monthly installments, commencing April 1, 2014.

3. The plaintiff shall pay to the defendant child support in the amount of $73 per week as ordered by the court on May 17, 2010.

BY THE COURT

HELLER, J.

FOOTNOTES

FN1. The plaintiff also voluntarily contributed to the cost of Hannah's swimming lessons and her karate classes.   These payments were separate from the plaintiff's court-ordered child support obligation..  FN1. The plaintiff also voluntarily contributed to the cost of Hannah's swimming lessons and her karate classes.   These payments were separate from the plaintiff's court-ordered child support obligation.

FN2. In seeking to recover a total of $24,100, the defendant counted the remaining May 17, 2010 arrearage twice—by including the portion of the $100 weekly payments that was intended to retire the arrearage as well as the unpaid balance of the arrearage itself..  FN2. In seeking to recover a total of $24,100, the defendant counted the remaining May 17, 2010 arrearage twice—by including the portion of the $100 weekly payments that was intended to retire the arrearage as well as the unpaid balance of the arrearage itself.

Heller, Donna Nelson, J.