Opinion
No. KNO FA 02-0124946 S
April 24, 2008
MEMORANDUM OF DECISION
Before this court are two motions filed by plaintiff on February 11, 2008, following the February 5, 2003 judgment which dissolved the marriage of the parties. Motion #139 claims that defendant is in contempt of that order with respect to payment of unreimbursed health care expenses of the minor children. Motion #140 seeks a modification of the court's prior order as to child support. On April 22, 2008, plaintiff appeared with counsel and defendant represented himself at a hearing on both motions.
I. The Contempt
Two children were born issue of the marriage, and they remain minors. The judgment ordered each party to pay 50% of ". . . any unreimbursed health expenses together with prescription drugs and dental expenses" of the children. Plaintiff's Exhibit 2 consists of about forty pages of receipts and calculations showing that she incurred expenses in those categories of which more than $8,000 has not been reimbursed by any insurance carrier. The precise share due from defendant is $4,133.98. While conceding that he has had notice from her of these expenses and that his share remains unpaid, he contends that a) some of the receipts might be fabrications; b) many of the services provided were unnecessary; and c) the insurance in force could or should have paid substantial portions of these charges upon properly-submitted claims.
There is no proof that plaintiff has submitted fabricated statements regarding her claims. If she had, she would be subjecting herself to possible prosecution for perjury in addition to potentially drastic civil sanctions. Defendant's claim to this effect, being unsupported by anything beyond his conclusory assertion, is unfounded.
The expenses cover two children's medical and dental treatment, over a period of four years. The court heard testimony that both children have special needs. Defendant has had less contact with the children than he would desire, which has diminished his knowledge of their actual needs. One of the major items is a bill for over $3,000 for orthodontia. The primary custodial parent, in deciding what treatment to incur for the children, was exposing herself to payment of an amount equal to that which she now seeks to recover from the defendant. Under all these circumstances, and in this context in which the children's medical needs are only indirectly at issue, this court does not find that any of the services rendered to the children were excessive.
It is unknown whether he is correct that his insurance would reimburse the parties for the amounts that plaintiff has paid. The court finds that he is in contempt for failure to pay her the $4,133.98 she seeks. However, the court will allow him until May 31, 2008, to pay her this amount. In the interim, he may pursue reimbursement from the insurers pursuant to the terms of his policies. All amounts received from those insurers shall be paid over to plaintiff (as directed by the judgment, which incorporates the provisions of § 46b-84(e), Conn. Gen. Stat.), but such amounts shall be credited towards the amount found due. Plaintiff is ordered to cooperate with him in the processing of these claims.
To monitor compliance with this order, the motion for contempt is continued to the short calendar of June 2. Both parties are to be in attendance at court on that date unless plaintiff certifies to the court that there has been full compliance prior thereto.
II. Modification of Child Support
The judgment also provided that defendant pay to plaintiff $650 weekly as unallocated alimony and child support for a period of five years. On February 5, 2008, when that order expired, the judgment directed that by agreement or court order" . . . appropriate child support orders . . . effective as of the date of termination of the unallocated order" were to enter. Coincidentally, this provision embodies verbatim paragraph 8 of the "Dissolution of Marriage Agreement" signed by both parties on the date of judgment, and which recites, inter alia, that defendant believed that agreement to be fair and equitable and that he signed it freely and without duress.
At the time of judgment, the defendant's financial affidavit indicated annual earnings of more than $76,000 gross and $61,700 net. He testified in this hearing that he remained with that same employer for about three years following the judgment, and in the same capacity, and at the same earning level. His financial affidavit sworn to on April 22 indicates zero income. He claims that in 2007 he took a new job, this one paying over $112,000 gross per year. He quit this job, however, because, as he candidly admitted, he thought it not worth his while to go to work when plaintiff was looking for all the fruits of that labor. He also testified that he is a self-employed contractor working with other businesses.
On the same financial affidavit, he lists no assets, but claims expenses of $1,855 weekly. These include a mortgage payment of $550 and an auto loan payment of $175 per week. When asked why he had such payments given the lack of any assets in these categories, he admitted that the house and the cars were in the name of his new wife but that he was making these payments on her behalf.
In Hart v. Hart, 19 Conn.App. 91, cert denied 212 Conn. 813 (1989), the court approved a trial court's order of child support based upon the earning capacity of the obligor rather than upon his claimed actual earnings, and in doing so observed.
"In marital dissolution proceedings, under appropriate circumstances the trial court may base financial awards on the earning capacity rather than the actual earned income of the parties; Lucy v. Lucy, 183 Conn. 230, 234, 439 A.2d 302 (1981); Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980); when, as here, there is specific evidence of the defendant's previous earnings." Venuti v. Venuti, supra, 161; see also McKay v. McKay, 174 Conn. 1, 2, 381 A.2d 527 (1977); Lev v. Lev, 10 Conn.App. 570, 573, 524 A.2d 674 (1987). It is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in his field. Miller v. Miller, supra, 612-13; Schmidt v. Schmidt, 180 Conn. 184, 189-90, 429 A.2d 470 (1980).
Historical earnings and spending levels are two factors upon which a court may rely in determining earning capacity; Carasso v. Carasso, 80 Conn.App. 299 (2003). Here the long history of defendant having earned around $76,000 per year, together with his present spending level of $1,605 weekly (the 1855 includes 250 for child support), both support a finding that he has a present ability to earn what he has earned in all but one of the last five years, that is, $76,000 per year.
Indeed, in this case the "earning capacity" analysis merely assures the court of the justice of imposing a support order upon him; the court is not convinced that his actual earnings are, as he claims, less than that amount, given the rambling nature of his testimony, his obvious ill will toward plaintiff, and the impossibility of his spending what his financial affidavit alleges while purportedly earning zero dollars per week.
Utilizing that figure in the child support guideline formula, and taking into account his tax, social security, and insurance deductions to arrive at his net income, yields a presumptive support order of $322 per week. In preparing the attached worksheet* the court has assumed that each parent claims one child as a dependent for tax purposes, as ordered by the judgment; that defendant is treated, for social security tax purposes, as an employee rather than a self-employed person, as he was able to earn that sum as an employee in the past; that the cost of medical insurance paid by defendant for these two children is one-half the $225 shown on his financial affidavit, in light of his testimony that he is remarried and has other children; and that plaintiff has no earned income or earning capacity at this time. This last detail may be one to which defendant takes exception. The court heard, however, that each of the Braatz children has special needs which occupy their mother more than might ordinarily be expected. In addition, on his side of the formula, the court is using an earning figure of $76,000 annually, not the $112,000 which he earned for a brief period in 2007; utilization of the higher number would produce a weekly support order almost twenty percent higher.
Defendant should be alerted that although his child support obligation might be marginally lower than $322 if it were assumed that she were earning a laborer's wage, his share of the daycare cost to enable her to do so could well exceed his savings.
In light of the foregoing discussion, child support of $322 weekly is hereby ordered. Given the uncertainty as to defendant's actual earnings going forward, as well as the potential for plaintiff becoming employed, each party is further ordered to provide the other notice of any substantial change in employment or earning status, within thirty days of such occurring, in order that a new order may be entered upon proper motion if appropriate.
Lastly, the judgment provided that this order be effective as of February 5, 2008. Twelve weeks will have elapsed between then and April 29, within which time a total of $3,864 should have been paid. Defendant has apparently paid $1,250 since February 5, leaving a balance due of $2,614. He is ordered to pay that sum before May 20. If he fails to make that payment, and if plaintiff moves that he be held in contempt for such failure, that motion will also be heard on June 2.
This amount covers the period February 5 through April 29 only, and is not in lieu of the weekly support payments due on May 6 and thereafter.
CT Page 6557