Opinion
FA156063714S
12-04-2018
Marysol HENDON v. Joshua HENDON
UNPUBLISHED OPINION
Olear, J.
I
APPLICABLE LAW
A. Contempt
In a civil contempt proceeding, the movant has the burden of establishing, by clear and convincing evidence, the existence of a court order and noncompliance with that order. Brody v. Brody, 315 Conn. 300 (2015). A finding of contempt cannot be based on an order that is vague and indefinite. Wilson v. Wilson, 38 Conn.App. 263 (1995). "The contempt remedy is particularly harsh ... and may be founded solely upon some clear and express direction of the court ... One cannot be placed in contempt for failure to read the court’s mind." Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). "Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 14 (2001). "[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, supra, 38 Conn.App. 275-76; Niles v. Niles, 9 Conn.App. 240, 253-54 (1986).
However, "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." Nelson v. Nelson, 13 Conn.App. 355, 367 (1988) (court still required to hold evidentiary hearing to support such orders); see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party’s actions did not constitute contempt, court’s remedial orders were well within the court’s general remedial discretion).
It is elementary that court orders must be complied with until they are modified by a court or successfully challenged. Eldridge v. Eldridge, 244 Conn. 523, 530 (1998).
B. Modification
"The burden is on the party seeking modification to show the existence of a substantial change in circumstances." Jaser v. Jaser, 37 Conn.App. 194, 204 (1995); Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992); see also Walshon v. Walshon, 42 Conn.App. 651 (1996) (dismissing plaintiff’s motion for modification for failure to make out a prima facie case of a material change in circumstances).
"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 when, as here, there is specific evidence of the defendant’s previous earnings. 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." Hart v. Hart, 19 Conn.App. 91, 94-95, cert. denied, 212 Conn. 813 (1989) (internal citations omitted).
In Hart, the defendant had worked in quality control engineering, earning approximately $39,000 until he voluntarily quit and cut lawns for a living, earning approximately $8,000 a year thereafter. The trial court was found to have properly attributed an earning capacity to the defendant.
In Miller v. Miller, 181 Conn. 610, 611-12 (1980), the defendant argued that it was improper to impute an earning capacity to a party in the absence of a finding that the defendant willfully depleted his earnings with a view toward denying or limiting the alimony to be paid to his wife. The Supreme Court disagreed: "Our cases indicate that it is permissible to utilize a party’s earning potential in making financial awards where, as here, the earnings of that party are voluntarily depleted so as to deprive the spouse of financial support." Miller v. Miller, 181 Conn. 610, 612-13 (1980). The defendant in Miller had voluntarily and unilaterally left his employment several months after the plaintiff had commenced the dissolution action, resulting in a reduction of his income. The facts supported the trial court’s determination that it was appropriate to impute an earning capacity to the defendant.
II
FACTUAL FINDINGS, HOLDINGS AND ORDERS
The defendant seeks a reduction in his alimony and child support payments due to a decrease in his earnings-he is now receiving unemployment compensation.
As financial matters are in dispute the court orders the unsealing of the parties’ financial affidavits.
In this case, the defendant did not voluntarily quit his employment. After working at his company for sixteen years, he was terminated due to excessive absences, tardiness and performance. The plaintiff claims that because he was terminated due to his own actions, the court should disregard his decrease in income and continue support at the levels set forth in the separation agreement. The court agrees.
The courts find the defendant failed to maintain his prior steady and gainful employment. The fact that he blames the absences and ultimately the loss of his job on the time spent on the divorce and the foreclosure of his home is unavailing. The court does not find he lost his job to deprive his children and the plaintiff of support. The credible evidence is that he chose to move to Tennessee to live with his extended family, restart a relationship with a paramour and obtain employment in Tennessee.
The court does find credible his testimony that he is searching for a new position and is not content to collect unemployment insurance.
The defendant also believes the plaintiff is cohabitating, but there is no motion pending that alleges any such basis for modifying the alimony.
The court orders the alimony and child support to remain at the amount of $225 and $275 a week, respectively, in accordance with the terms of the judgment.
The plaintiff claims the defendant is in arrears on the payment of child support and alimony and that he owes a total of $4,240 as of November 8, 2018.
The defendant claims the plaintiff did not contribute her share of a contribution to the deductible on his insurance since the divorce, but there is presently no motion for contempt pending or evidence of the same with respect to such claim. (The defendant’s prior motion for contempt on the issue (# 171) was denied by the court, Nastri, J. (# 178).)
The court finds the plaintiff’s testimony on the arrearage to be credible and not challenged with any evidence beyond unsubstantiated assertions. The court finds the arrearage of child support and alimony as of November 8, 2018 to be $4,240. The defendant shall pay $30 a week on the arrearage.
The defendant also seeks to have the court modify his parenting access due to his relocation to Tennessee.
On the first appearance on his motion, the court, Prestley, J., ordered the defendant, when in Connecticut, to have reasonable parenting time and visitation access with the children and the plaintiff was not to interfere with the same (order # 184).
The plaintiff is adamantly opposed to having the children, particularly their daughter, stay with the defendant for any extended period. The parties’ daughter has medical issues that require parental diligence in monitoring her health.
The court finds the defendant’s testimony that he can provide care for the children, particularly for so long as he is residing with the children’s paternal grandparents, credible.
The orders of Judge Prestley shall remain in effect until the February school vacation break.
The court orders the children are to visit the defendant in Tennessee and stay with the defendant at his parent’s home for the February school vacation from February 14-18, 2019. The defendant shall pick up and return the children to Connecticut for such break. The defendant shall keep the plaintiff informed of the children’s welfare once a day, however, if a medical issue or other concern arises, he shall keep the plaintiff informed on a reasonable basis. After the February break, the orders of Judge Prestley shall resume until further order of the court.
The parties shall return to court on the short calendar of March 6, 2019, to revisit the parenting schedule and the defendant’s motion to modify his parenting access is continued to that date.
The defendant is advised to mark his motion ready and advise the plaintiff when he does so.
In the exercise of its remedial discretion, the court orders the parents to enroll with TalkingParents.com and to communicate with each other through such website, absent an emergency situation when the parties shall communicate by text or telephone call.
The court also orders the parties to comply with the terms of the judgment and the orders of Judge Nastri on the exchange of tax returns and related information. The parties’ belief that the exchange must be simultaneously is misplaced. Each must comply with the judgment and the failure of one party does not excuse the failure of the other.
SO ORDERED.