Opinion
No. FA09 402 76 49
May 10, 2011
MEMORANDUM OF DECISION
Plaintiff seeks an order of the court finding the defendant in contempt of its January 11, 2011 orders. The marriage of the parties was dissolved on said date pursuant to the terms of a Separation Agreement of same date. Pursuant to paragraph 8 (B) of said agreement, the defendant is to pay to the plaintiff a sum equal to 33% of any and all employment income that he receives between 0 and $315,000 per annum; 50% of all employment income between $315,000 and $400,000 per annum; 40% of all employment income between $400,000 and $1,000,000 per annum; and 30% of all employment income between $1,000,000 and $1,500,000 per annum.
By motion dated September 10, 2010 (#111.89), the plaintiff sought, inter alia, to have the defendant found in contempt of this court's orders regarding child care costs for the minor children, the payment of alimony and child support, and the timely provision of information regarding his income.
In addition, on November 1, 2010, the plaintiff filed a second motion for contempt (#114.00) alleging that the defendant had failed to divide his 401(k) account, and had failed to divide his Employee Stock Ownership Plan in accordance with the terms of the Separation Agreement.
By motion dated November 2, 2010 (#120.00) the defendant sought to modify his alimony and support obligations to the plaintiff.
A hearing on motion #111.89 was originally scheduled for October 7, 2010 but the defendant requested (and the plaintiff consented to) a continuance of that hearing date until November 4, 2010. On November 4, 2010, the defendant failed to appear, despite the parties' prior agreement that the matter would be heard on that date and the Court (Winslow, J.) proceeded on the plaintiffs #111.89 motion regardless of the defendant's absence and at the conclusion of the hearing, found the defendant in contempt of the following requirements of the separation agreement: the requirement that he make timely alimony payments to the plaintiff and the requirement that he reimburse the plaintiff for required child care costs. The Court deferred to a later hearing the issue of counsel fees on the contempt, as well as the additional items of contempt raised by motion #111.89 and motion #114.00.
In the meantime, the defendant's motion to modify appeared on the Court's calendar for November 18, 2010. However, the defendant failed to provide counsel for the plaintiff with a sworn financial affidavit at least five (5) days in advance of the hearing date. In addition, despite the fact that plaintiff's counsel had issued a subpoena duces tecum (served in hand) to the defendant on November 14, 2010 for the hearing on November 18, 2010, the defendant appeared in court with no affidavit, and no documents responsive to the subpoena. The Court granted the plaintiff's request that the matter be postponed to a subsequent date and awarded plaintiff's counsel $250 in counsel fees for that day's appearance in court.
On December 14, 2010, the defendant filed a Motion to Reargue, seeking to have the Court reconsider its finding of contempt of November 4, 2010.
On January 25 and 26 respectively, the plaintiff filed an additional Motion for Contempt (#125.00) and a Revised Motion for Contempt (#126.00), which updated the amounts owned by the defendant under the prior contempt motions.
On February 3, 2010, the Court (Winslow, J.) heard the defendant's Motion to Modify and his Motion to Reargue and denied both. The remaining motions (Plaintiff's Motions for Contempt #114.00, 125.00 and 126.00) were assigned for a hearing on March 28, 2011 but that a hearing was reassigned to March 30, 2011.
The parties both appeared in court with their respective counsel on the morning of March 30 for the hearing on the two pending motions for contempt. For the first time, counsel for the defendant presented to counsel for the plaintiff (on the record) an original check in the amount of $34,339.10.
The plaintiff testified that the defendant's total outstanding alimony obligation as of the date of the hearing was $42,018.73. The plaintiff presented a spreadsheet showing her calculations. The check defendant presented to the plaintiff in court, is still left a balance of $7,679.63.
In addition, the plaintiff presented a chart that details the children's expenses that the defendant either failed to pay or paid late pursuant to the terms of the Separation Agreement. Although the plaintiff testified that the defendant had eventually paid all but $48.75 of the cost for the children that she had previously presented to him for payment, it was undisputed that those payments were not made on a timely basis pursuant to the express terms of Article 17 of the Separation Agreement.
The plaintiff testified that until she filed the motion for contempt regarding the division of the 401(k) and the division of stock, nothing had happened to advance either of those issues from the date of judgment until after the motion for contempt was filed with the court. Since the parties were divorced in January of 2010, a full nine months had gone by before the defendant took action to resolve these issues. The defendant introduced documentation to establish that the QDRO is now in the process of being prepared. Plaintiff claims that the defendant's actions to advance this issue were not taken in a timely manner consistent with the requirements of the Separation Agreement.
The defendant testified that he could not comply with the Court's orders regarding alimony. He also testified that he travels often for work and that because he moved residences a number of times since January of 2010, the arrival of his paychecks from various sources was often delayed.
The defendant admitted during his testimony that he has paid numerous personal expenses during the ten months for which he produced full records totaling approximately $93,000.00.
While the defendant claimed that some of the expenses paid on these accounts were business expenses, his testimony failed to support this claim. He testified that many of the expenses were business related but offered no specific evidence to support his claim. A review of the statements shows that many of the purchases on the cards were personal — jewelry, skiing, golf and the like. The defendant testified that $15,000 of the total expenses on one credit card represented to cost of an engagement ring for his new wife. This is an excessive cost to incur (and pay for) during a period of time when a party claims to be unable to pay his court ordered obligations.
In addition, during the time period when the above-mentioned charges were incurred, the defendant was also an active member of a country club, where he golfed, enjoyed meals, and took the children. Although the defendant attempted to tell the court that some of the charges incurred were for the plaintiff, he admitted that the plaintiff is relegated to "nanny" status at the country club, and that her use of the facilities is limited to those activities that are ancillary to her caring for the children while they are utilizing the club. The defendant's total payments to the country club for club use for the time period January 2010 through March 2011 are in excess of $19,0000. The record clearly establishes that the defendant had paid more than $90,000 in personal credit card charges and almost $20,000 in country club expenses during the last one year time period.
It is well settled that a civil contempt is established when a party violates a court order that requires him or her to do or refrain from doing a specific act. In re Leah S., 284 Conn. 685, 695 (2007). In order for given conduct to be contemptuous, it must be willful. Detels v Detels, 79 Conn.App. 467, 470 (2003). However, the burden to establish an inability to comply with a court order is on the party shown not to be in compliance with the court order at issue. Eldridge v. Eldridge, 244 Conn. 523, 532 (1998).
In Miller v. Miller, FA93-0131513-S, 1993 WL 452276 (Conn.Super.Ct. Oct. 20, 1993), the court granted the plaintiff's motion for contempt. The court stated in relevant part:
The court finds that the action of the defendant was willful in that he failed to pay the child support at the time when he was meeting other expenses and did not give priority to the court's order pursuant to section 3.1 of the separation agreement. At the hearing he failed to provide credible and convincing evidence that he did not have the means to pay; he failed to convince the court that he was suffering business reversals. His testimony to substantiate his claim that he was unable to meet the obligations.
Accordingly, the court ordered the defendant husband to pay the $22,500 arrearage owed to the plaintiff.
In Van Nest v. Kegg, 70 Conn.App. 191 (2002), the plaintiff was held in contempt for failing to maintain life insurance policies in accordance with a court order (and the contempt regarding this issue was upheld on appeal). The trial court concluded that during a period of time when the plaintiff permitted his court ordered life insurance policies to lapse because he alleged that they were too expensive to maintain, he had managed to pay counsel fees of more than $1,000 and more than $1,100 for a vacation with his children. Similarly, in the instant case, the defendant clearly prioritized other voluntary and in some instances, recreational expenses over his court ordered support payments. This is not permitted upon the applicable caselaw.
Notably, in the case of Bunche v. Bunche, 36 Conn.App. 322 (1994), our Appellate Court concluded that a breaching party's failure to present evidence adequately proving an inability to pay permits the trial court to conclude that the contempt is willful. Even if this court were to conclude that the payments voluntarily made by the defendant do not support a contempt finding, the failure of the defendant to supply evidence to prove his inability to comply with the Court's order is dispositive of this claim.
Defendant's counsel claimed at the hearing that this court could not award counsel fees to the plaintiff because the defendant appeared in court with a check in satisfaction of the bulk of the claimed arrearage. This is a misstatement of the law. In the case of Dobozy v. Dobozy, 241 Conn. 490 (1997), our Supreme Court stated that the purging of a contempt does not prevent a court from awarding attorneys fees to the wronged party. This is precisely for the following reason, as articulated by the Dobozy court,
We have, moreover, found nothing in the history of the divorce reform legislation to suggest that, when an aggrieved parent brings a contempt action to enforce compliance with child care and support orders, the trial court's authority to award attorneys fees under § 46b-62 is contingent upon a finding that the respondent is in contempt. As a matter of policy, to infer such a limitation would preclude a financially disadvantaged parent from recovering attorneys fees from a recurrently recalcitrant former spouse so long as the spouse complies with family support orders at, or immediately prior to, the time of the contempt proceeding and persuades the trial court that his compliance, although belated, militates against a finding of contempt. In effect, it would give considerable leverage to the recalcitrant former spouse to undermide the effectiveness of court orders for the protection of children.
Id., at 497. This same rationale was utilized by our Supreme Court in Eldridge v. Eldridge, 244 Conn. 523 (1998), in a similar situation where the court order at issue was an alimony order, not a child support order.
It would be inequitable for this court to deny the plaintiff's claim for counsel fees because the defendant in this case failed to timely comply with court orders regarding the payment of alimony and children's expenses, failed to pay adequate alimony, failed to produce required financial information, failed to take any action to distribute his 401(k) or ESOP, failed to comply with a subpoena, failed to appear for a previously scheduled court date, and presented a check to the plaintiff at the eleventh hour as the Court was beginning a hearing on the outstanding motions for contempt. An award of attorneys fees is clearly necessary and prudent, in order to provide the defendant with a sufficient disincentive against continuing to force the plaintiff back to court to require compliance with the court orders.
Orders
1. The defendant is in contempt of this Court's orders of January 11, 2010 in that he has failed to timely pay support to the plaintiff;
2. The Court finds an arrearage in the amount of $7,679.63 in outstanding alimony payments;
3. The Court finds an arrearage in the amount of $48.75 in outstanding payments for the benefit of the children;
4. The Court orders interest on the unpaid amounts of $66.82 in accordance with Article 17 of the parties' Separation Agreement; and
5. The Court orders counsel fees for the plaintiff in the amount of $17,500.00.