Opinion
No. FA 02-0731814
April 5, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT DATED NOVEMBER 30, 2006 (#138); DEFENDANT'S MOTION TO COMPEL PRODUCTION DATED DECEMBER 21, 2006 (#139); DEFENDANT'S OBJECTION TO PLAINTIFF'S MOTION FOR CONTEMPT DATED DECEMBER 21, 2006 (#140); DEFENDANT'S MOTION FOR CONTEMPT DATED JANUARY 31, 2007 (#141); AND DEFENDANT'S MOTION FOR ATTORNEYS FEES DATED JANUARY 31, 2007 (#142)
The forgoing motions were heard by the court on January 9, 2007 and February 6, 2007 when the parties appeared with counsel, offered their testimony and introduced documentary evidence. The parties were married on May 26, 1984 and had one child issue of the marriage, to wit, Karina Lee Gorski, born March 27, 1987. On August 25, 2003 the court (Cohen, JTR) dissolved the marriage and incorporated the parties agreement into the judgment. Three Articles of the Agreement have been called into question by the filing of the pending motions. For ease of reference the court has made copies of the pertinent Articles as exhibits to this Memorandum of Decision. Exhibit 1 covers post-secondary educational expenses (Article IV of the Agreement). Exhibit 2 covers alimony (Article VI of the Agreement). Exhibit 3 covers life insurance (Article VII of the Agreement).
The following is a summary of the pending motions and the relief sought.
Motion #138. The plaintiff alleges the defendant has failed to pay his share of post-education expenses for Karina for the academic years 2005-2006 and 2006-2007 and that he is in arrears in his alimony payments. The plaintiff seeks to have the defendant found in willful contempt, pay the court ordered educational expenses, pay the alimony arrearage and pay reasonable attorneys fees.
Motion #139. The defendant seeks to compel the plaintiff to produce documentation that she has life insurance as required by the judgment.
Motion #140. The defendant objects to Motion #138 claiming he is not in willful contempt and seeks attorneys fees claiming the allegations of the plaintiff are frivolous.
Motion #141. The defendant's motion is addressed to Motion #139 claiming the plaintiff has failed to comply with his motion to compel and seeking attorneys fees.
Motion #142. The defendant filed a separate motion for attorneys fees. It should be noted that the plaintiff has filed a claim for attorneys fees.
It is quite evident that both parties still harbor ill feelings for one another. Further, the plaintiff called her daughter as a witness. She displayed a total lack of respect for her father. To say their relationship is non-existent would not be an exaggeration. Her testimony clearly indicated hostility towards her father and added nothing by way of credible evidence to aid the court in reaching a fair and just resolution of the motions. In response to a question from her counsel pertaining to what contact she had with her father her response was "not worth it to me". In response to her last contact with her father in August of 2006 her comment was "my Mom and I will see you in court". It appears her only concern is that her father pays his share of her college expenses. The plaintiff had previously showed her the underlying dissolution decree and let her read the portions pertaining to educational expenses.
The following are the court's findings with respect to each motion.
Motion #138. Following her high school graduation in 2005 Karina enrolled in Emmanuel College in Boston for the academic year 2005-2006. Following her first semester she transferred to Simmons to obtain the benefit of a course or courses not available at Emmanuel. The defendant felt he had a bona fide position in the payment of his share of the tuition and other costs for which he was responsible. There is no dispute as to the payment for the 2006-2007 academic year at Simmons. At the conclusion of the hearing the parties were in agreement as to what was owed by the defendant for tuition for 2005-2006 and the money still owed for his share of book expenses. The communication between the parties on the amounts in dispute was ambiguous. The defendant further claimed he was not made aware of the change of colleges until after it had already occurred.
As to the alimony issue the court finds that the defendant has paid the plaintiff in a timely manner since the dissolution of the marriage. During the post-judgment period alimony was terminated due to the plaintiff's cohabitation. The defendant had stopped paying alimony when he learned of the cohabitation. The timing of the payment of the arrearage was in dispute and was paid at the time of the hearing.
Motion #139 and Motion #141. These motions will be dealt with together. The plaintiff agreed and it was ordered that she maintain a $ 25,000 life insurance policy as set forth in Exhibit 3. She has failed to do so claiming that she was unaware of the requirement. She is now in the process of complying with this provision.
Motion #142 and Plaintiff's Claim for Attorneys Fees. The court finds that both parties are in contempt of the court's orders but further finds that their contempt does not rise to the level of willfulness which would warrant an order for the payment of attorneys fees by either party.
EXHIBIT I ARTICLE IV — POST-SECONDARY EDUCATIONAL EXPENSES Additional Post Majority Expenses Relative to the Child:
1. These parties each acknowledge notice and discussion concerning Connecticut Public Act ( P.A. 02-128), which allows for education support orders subject to various provisions and conditions.
2. It is more likely than not that the parents would have provided support to Karina for higher education or private occupational school if the family were intact. On motion or petition of either parent, the court shall enter an educational support order to effectuate the terms of this agreement.
3. In addition to the periodic support, the parties shall provide support for the education of Karina while she is enrolled full-time as an undergraduate in an accredited post-secondary educational facility including colleges, universities, technical schools and the like. At the appropriate time, both parents shall participate in the decision as to which institution of higher education or private occupational school that Karina will attend. The court may make an order resolving the matter if the parents fail to reach an agreement.
4. The term "full-time" for the purposes of the support obligation shall mean that Karina must take a minimum of four (4) courses per semester. Karina must maintain good academic standing in accordance with the rules of the institution and school. Karina must make available all academic records to both parents during the term of the order. The order shall be suspended after any academic period during which Karina fails to comply with these conditions.
5. The parties will equally share the costs relative to postsecondary education as follows: tuition, room and board, books, athletic fees and student fees up to the dollar limitation as defined in Public Act (P.A. 02-128). The parties may make payments directly to the institution of higher education or private occupational school. This clause is not intended to cover expenses relative to the preparation needed to attend school, costs relative to applying or visiting prospective schools, or costs associated with the taking or preparation to take exams required to apply to schools, or to expenses such as clothes, computer and athletic equipment required to attend the post-secondary educational facility of the child's choice.
6. This clause is not intended to confer upon Karina any right of action to enforce this support order.
7. In no event does the parties' obligation apply to graduate school. The parties' obligation to pay for room and board shall only apply if Karina lives in school-provided housing and participates in a school-provided meal plan.
8. The obligation of the parties to contribute to the cost of Karina's education will only apply in excess of any financial aid received. Both parents shall cooperate in the filing of any financial or other documents required by the institution or any lending institution in applying for financial aid or loans. Such financial aid shall include all grants, scholarships, work-study programs, and school or government sponsored loans, either subsidized or unsubsidized. If Karina is eligible and upon agreement between the parties she takes a loan for any education-related costs, the parties shall be responsible for paying the total loan due under the terms of the loan. The parties' obligation for payment of this loan is subject to all the aforementioned terms and conditions applicable to their obligation to contribute to college costs in general.
9. The parties agree that this Court shall continue to have jurisdiction over this issue pursuant to P.A. 02-128, unless it is repealed, to enter orders regarding the parties' respective obligations for college education pursuant to the provisions of the terms of this agreement in the event that the parties are unable to agree in the future.
EXHIBIT 2 ARTICLE VI — ALIMONY
The Defendant waives all right to alimony and recognizes that by not requesting alimony now, he can never come back to this or any other court to request alimony.The Defendant shall pay to the Plaintiff the following alimony which shall be non-modifiable as to term. The alimony shall be modifiable as to amount but only after August 2005. The Defendant shall pay alimony in the amount of Two Hundred Seventy-Five ($ 275.00) Dollars per week starting seven (7) days after the dissolution and weekly thereafter. Said alimony shall continue until the first of the following events should occur:
1. The death of either party;
2. August 25, 2021;
3. The marriage of the Plaintiff;
4. The cohabitation of the Plaintiff as referenced in Connecticut General Statutes 46b-86(b).
The alimony payments made hereunder shall be pursuant to Section 71 of the Internal Revenue Code, deductible by the Defendant (payor) and includible in the income of the Plaintiff (payee).
For purposes of modification, after August 2005 the court can, but is not required to consider the imputed incomes that the parties established at the time of the divorce. In considering the issue of modification, the Court shall not include income that is acquired by either party from an asset that had been divided in accordance with the terms of this agreement or the progeny of an asset that had been divided in accordance with the terms of this agreement, including but not limited to the investment accounts and their progeny, or the life insurance, or the retirement accounts, or the equity value of the house, except for income the Defendant receives from his business (although not from a sale of his business).
EXHIBIT 3 ARTICLE VII — LIFE INSURANCE
The Plaintiff shall maintain life insurance with a minimum value of $ 25,000 naming the other party as trustee for the minor child under the Uniform Gifts to Minors Act for so long as the support obligation exists under this agreement, or she has an obligation for the payment of the post-secondary educational expense, or any modification thereof. The Plaintiff has the availability and the financial means to obtain this level of insurance.
The Plaintiff shall further provide a payment of Twenty-Five Thousand ($ 25,000.00) Dollars for the benefit of the minor child's secondary educational expenses, as aforesaid, by a specific bequest in her Will, or through a trust, for so long as she has an obligation for the post-secondary educational expenses or any modification thereof.
The Husband shall maintain a decreasing term life insurance policy on his life in the original amount of One Hundred Fifty Thousand ($ 150,000.00) Dollars to secure the payment of the child support and alimony payments described herein in the original amount of One Hundred Fifty Thousand ($ 150,000.00) Dollars. Said policy shall name wife as beneficiary so long as there is an alimony and/or child support obligation in an amount sufficient for the outstanding obligations.
The Defendant shall retain ownership including any cash balance currently accrued in the life insurance policy he currently owns through The Hartford and through American Express.
Each party, promptly after the execution and delivery of this Agreement, shall deliver to the other such insurance policy or certificate or other instrument evidencing such designation of beneficiary and/or trustee under the Uniform Gifts to Minors Act for the benefit of the minor child, and the each party shall execute and deliver all forms, instruments and documents which may be required and which may be appropriate or suitable in connection with such designation.
At least once a year, each party shall submit to the other a photocopy or other proof of the payment receipt evidencing payment of premiums on the policy hereinabove set forth upon reasonable request by the other party.