Kimberly Corcoran v. William Corcoran (2014)

MEMORANDUM OF DECISION

The marriage of the parties was dissolved by decree of this court on October 13, 2004.   At that time, the parties entered into a certain Separation Agreement (# 111.00) [“Agreement”] also dated October 13, 2004, which provided for the payment of alimony and child support, and divided their real and personal property, and dealt with matters of custody and parenting.   They are the parents of four minor children, ranging in age from 9 to 16, who primarily reside with the plaintiff mother (“mother”), and the defendant father (“father”) has rights of visitation.   The parents share joint legal custody.   The decree provides that the father is to pay to the mother, at present, among other things, unallocated alimony and support in the amount of $15,250.00 per month.   In addition, there was a provision for the payment of a percentage of any bonus (“retroactive payment”).   It is this provision that has fueled some of the controversy, since the parties are unable to agree upon whether the percentage is applied to the year the payment is “earned” or in the year that it is actually received.   The alimony portion of the order terminates on August 31, 2018, if not sooner for cause.   With the exception of the “safe harbors” for each party, the orders are modifiable, and the parties are required to exchange federal income tax returns annually.

In hindsight, this might well have been an overly-generous financial commitment on the part of the husband.   Nevertheless, it is not the function of the court to re-write such agreements, a point emphasized by the Connecticut Supreme Court:  “Courts of law must allow parties to make their own contracts.   It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree.   Whether provident or improvident, an agreement moved on calculated considerations is entitled to the sanction of the law.”  [Internal citations omitted.]  Crews v. Crews, 295 Conn. 153, 169 (2010).

The father is 46 years old, and described his health as “great.”   Other than one brief period post-judgment, he has been more or less steadily employed.   At the time of the dissolution, the original order was based upon his net income of $18,086.00 per month.   Also at that time, he was living in Bethel, Connecticut.   Since that date he has moved to Darien, including another in-town move to a larger residence.   He told the court that he has done so to be closer to the children and to provide them with better accommodations when they are with him.   According to his most recent financial affidavit as on file, his current net income is $18,816.33 on a gross of $20,833.33 per month.   The father told the court that he did not anticipate a bonus in 2013.   He received a very large “retroactive” payment in 2011 in the amount of $326,000.00, for work performed in 2010, however, for the past two years, he has received more modest bonus payments averaging $43,269.00 a year.   He also pointed to increased living expenses.   However, aside from the initial move to Darien from Bethel, to be closer to his children, his subsequent move within Darien to a larger home, and its increased attendant costs, was self-created.

The mother is 45 years old and describes her health as “good.”   She considers herself a full-time homemaker, although she has held some part-time jobs, including substitute teacher and car salesperson.   According to her financial affidavit, her current earnings are, in essence, nominal.   Since the decree dissolving the marriage, she has performed the primary care responsibilities for the four minor children.   The Agreement accords her a “safe harbor” of $50,000.00 per year.

As set forth above, in addition to his base salary, since 2010, the father has consistently earned a bonus which was paid in the following year.   The biggest bone of contention between the parties is just how to treat this payment under the terms of the Agreement.   Complicating matters, in 2011, the father neglected to make timely payment of additional alimony per the schedule set forth in Article 3.6 of the Agreement.   He told the court that he forgot about that provision until it was brought to his attention once this litigation commenced.   The mother concurs with him.   This would militate against a finding of contempt on this score.

The father contends that the term “earned” refers to the right to receive monies for services rendered, and that a retroactive adjustment must be made, once the amount is known.   The mother contends that “earned” means “when paid” and that an adjustment must be calculated upon the income generated in the year of receipt of the bonus.   Accordingly, each has a different calculation as the amount owed to the mother.   The father calculates the money owed to be $30,200.00, and he has begun to repay the mother on a schedule in increments of $1,500.00 per month.   A careful reading of Article 3.6 of the Separation Agreement supports the father's interpretation.   The mother has mistakenly conflated the father's obligation to pay taxes on monies received, with his obligation to pay additional alimony and support based upon income when earned.

The matter comes before this court by way of the father's Motion for Modification (# 127.01) dated May 16, 2013, and the mother's two Motions for Contempt (# 154.00 and # 155.00) dated October 31, 2013, and November 4, 2013, respectively.   The father served the motion pursuant to statute on May 31, 2013, as evidenced by a copy of the return as on file, and has asked the court to consider a retroactive order.   In brief, beginning in early 2013, the father arbitrarily switched his payments from one time per month, on the first of the month, to twice a month.   Then, in February, he reduced his payments to $5,220.00 per month, only to make catch-up payments after the mother commenced an action for contempt.   He served and filed his own motion to modify, as aforesaid in May 2013.   By the end of July, he was caught up with back payments, at which time, starting with the August payment to date, he has, once again unilaterally reduced his payments to $5,000.00 per month to date at which level they remain.   This would leave a putative arrearage of $61,500.00 as of January 31, 2014.

As to another disagreement, Article 3.4 of the Agreement provides for an equal sharing of reasonable extra-curricula expenses related to the children.   It also provides separately for discussion and agreement by the parties in advance, regarding “unusual and extra-ordinary” expenses for the children prior to any payment, but it does not specify any fixed share for each party for such expense.   Aside from the somewhat conflicting testimony of each party regarding the mother's decision to proceed with testing for the minor child Kevin, the wife contends that Article 3.4 requires the father to reimburse her for 50% of the $4,000.00 bill.   The husband testified that he told the mother that she could make arrangements for the testing, but that he never agreed to contribute.   He therefore contends that he owes nothing.   That position, although not contemptuous, is unsupportable.

The court found the mother's testimony to be credible and compelling, and finds that the testing was necessary and in the best interest of the minor child, in that it determined that the child has some “processing issues,” and according to the testimony of the mother, has motivated the school to provide the assistance that he needed heretofore withheld.   While the court agrees with the father that the Agreement does not call for a specific payment or percentage by either party, and notwithstanding his initial refusal to pay any share, the facts bear out the unreasonableness of his position.   A reasonable reading of the Agreement implies a clear intent that each party bear some fiscal responsibility, and in the absence of an agreement, then in a sum determined by the court.   The purpose of the clause was to protect each party from large, unusual fiscal commitments made without some prior discussion.

Lastly, the mother has asked the court to order the father to pay her reasonable attorneys fees incurred to date, for which her counsel has submitted an Affidavit of Fees (# 166.00) dated January 6, 2014.

The case in chief was tried over the course of two days, but the evidence was kept open in order to give the husband the opportunity to challenge the claim of attorneys fees by the mother.   The evidence closed on February 6, 2014, following final argument.

FINDINGS

The court, having heard the testimony of the parties, considered the evidence and the provisions of the General Statutes, in particular § 46–56, 46b–62, 46b–81, 46b–82, 46b–86, 46b–87, and 46b–215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:

1. That an award of periodic alimony and/or child support may be modified upon the demonstration of a substantial change of circumstances, unless the order itself clearly precludes modification;  and that where a substantial change of circumstances has been found, the court shall consider the factors set forth in General Statutes § 46b–82.  General Statutes § 46b–86(a);  Borkowski v. Borkowski, 228 Conn. 729, 737 (1994);  Schorsch v. Schorsch, 53 Conn.App. 378, 382 (1999);  Spencer v. Spencer, 71 Conn.App. 475, 481 (2002).

2. That the net income of the husband at the time of the decree, as shown on his financial affidavit (# 106.10) dated October 13, 2004, was $18,086.00 per month;  that said net income was based upon both a gross base salary of $166,320.00 per year, and a gross annual bonus of $150,000.00;  that the current net income of the husband as shown on his current financial affidavit (# 161.00) dated January 7, 2014, is $18,816.33;  that said net income is based upon a gross base salary of $250,000.00 and no annual bonus;  that the evidence shows that for the previous two years, the father has received an average annual gross bonus of $43,269.00;  and that therefore, there has been no substantial change of circumstances since the date of the last order, and the motion for modification should be denied on these grounds.

3. That under all the facts and circumstances, the father's initial move from Bethel to Darien was not made in bad faith, the motivation being to live closer to his children;  that the subsequent move within Darien to a larger home, thus increasing his monthly expenses, was voluntary, unjustifiable, and made in bad faith, in that it unduly impacted his ability to meet his legal obligation to the mother, a fact that he knew or should have known at the time.  Olson v. Mohammadu, 310 Conn. 665, 684 (2013).

4. “A judgment rendered in accordance with ․ [an agreement] ․ of the parties is to be regarded and construed as a contract.”  Barnard v. Barnard, 214 Conn. 99, 109 (1990);  Issler v. Issler, 250 Conn. 226, 235 (1999);  that “a contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected to the transaction.”   Guaragno v. Guaragno, 141 Conn.App. 337, 344 (2013);  that the court has reviewed Article 3.6 of the Agreement by and between the parties dated September 24, 2004, and finds that the term “earned” refers to the remuneration, including base salary and bonus or “retroactive payment,” so called, to which the father is entitled on the basis of work performed during a given calendar year, and not on the year such payments are actually received;  that the father has an obligation to pay the mother the sum of $30,200.00, for the additional monies earned over and above $450,000.00 during the calendar year 2010, less a credit for sums paid on account to date;  and that the father's failure to pay this sum in a timely manner was not wilful.

5. That a finding of contempt must be based upon a wilful failure to comply with a clear and unequivocal order of the court.  Sablosky v. Sablosky, 258 Conn. 713, 718 (2001);  and that the order of the court entered on October 13, 2004, was clear and unequivocal.

6. That “a judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper hearing.”  Kelly v. Kelly, 54 Conn.App. 50, 60 (1999);  and that “a finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony.”  Dickinson v. Dickinson, 143 Conn.App. 184, 190 (2013).

7. That the husband's failure to pay his basic unallocated alimony and child support in accordance with the court order was wilful and without good cause.

8. That as of January 31, 2014, there was an arrearage in unallocated alimony and child support in the amount of $61,500.00;  and that said arrearage accrues at the rate of $15,250.00 per month, less any sums paid on account by the husband.

9. That the provisions of Article 3.4 of the Agreement provide for a sharing of certain expenses for the minor children;  that the order was not clear and unequivocal;  that the fees for the testing of the minor child Kevin, incurred by the wife were, however, reasonable and in the child's best interest;  and that, however, it is equitable and appropriate that the husband share that expense equally with the wife.

10. That “in a contempt proceeding, 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.”  Sardilli v. Sardilli, 16 Conn.App. 114, 120 (1988);  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988).

11. That the mother has incurred attorneys fees to date in the amount of approximately $100,000.00, of which she has paid $60,000.00;  that the Affidavit of Fees shows a balance due and owing of $41,961.75;  that while the court finds that the fees are in line with the going rate in this Judicial District, the fee is disproportionately high compared to the end result achieved;  and that, however, in light of the finding of contempt, it is appropriate to award the wife a contribution toward her attorneys fees per General Statutes § 46b–87.

ORDER

The court having heard the testimony of the parties and considered the evidence, and that for the foregoing reasons, the Motion for Contempt (# 154.00) dated October 31, 2013, is HEREBY GRANTED;  that the Motion for Contempt (# 155.00) dated November 4, 2013, is HEREBY DENIED;  and that the Motion for Modification (# 127.01) dated May 16, 2013, is HEREBY DENIED, AND IT IS FURTHER ORDERED THAT:

1. Commencing April 1, 2014, and on the first of each and every month thereafter, until the additional alimony due and owing to the wife attributable to the husband's bonus earned in 2010 is paid in full, the husband shall pay to the wife the sum of $1,500.00 per month.   Said sums shall be treated as periodic alimony, and thus income to the wife and deductible by the husband.

2. Commencing April 1, 2014, and on the first day of each and every month thereafter, until the arrearage is paid in full, the husband shall pay to the wife the sum of $1,000.00 per month.

3. Within thirty (30) days from the date of this Memorandum of Decision, the husband shall pay to the wife the sum of $2,000.00, as and for reimbursement for the testing of the minor child, Kevin.

4. The Court hereby orders an Contingent Wage Withholding Order pursuant to General Statutes § 52–362(b) in order to secure the payment of the financial orders.

5. On or before April 1, 2014, the husband shall pay to the firm of Rutkin, Oldham & Griffin, LLC., the sum of $7,500.00, as and for a contribution toward the attorneys fees of the wife incurred to date.

6. The court hereby reserves jurisdiction with regard to any issues that may arise regarding the accrued arrearage and any credits due the father for sums paid on account to date.

7. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25–59A(h).

8. In all other respects, the Decree of October 13, 2004, and the provisions of the Separation Agreement incorporated therein shall remain in full force and effect.

THE COURT

SHAY, J.

Shay, Michael E., J.