Opinion
No. FA 88-353769
April 8, 2003
MEMORANDUM OF DECISION
The marriage of the plaintiff, Michele Juers, and the defendant, Stephen Juers, was dissolved by order of the Court on August 16, 1989. The court also entered an order for the support of the parties' minor child, Eric, whereby the defendant was to pay to the plaintiff the sum of $281.66 on the first and fifteenth of each month. The court also provided that the amounts of weekly support payments would be adjusted annually in order to remain at the present level of 24% of the defendant's net income.
On or about September 24, 1994, the parties appeared in court. It was determined that the defendant was then paying child support in excess of the child support guidelines. The plaintiff alleges that it was agreed that the defendant would continue to pay the plaintiff child support in the amount of $356.92 bimonthly, or $164.73 weekly. No orders were entered by the court modifying the original child support order. The defendant alleges, however, that the parties entered into a postjudgment agreement with the assistance of Family Relations at court, whereby child support would be paid by the defendant in accordance with the Child Support Guidelines.
The plaintiff filed a motion for contempt for the defendant's failure to comply with the original order on October 19, 1995, November 2, 2000, September 12, 2001, and January 7, 2002. These motions were not pursued and, therefore, waived pursuant to Practice Book § 25-34. The plaintiff filed the most recent contempt motion, along with a motion for modification, on May 8, 2002, seeking an alleged arrearage back to the original 1989 judgment. The plaintiff alleges that the defendant failed to pay the plaintiff 24% of his net income for child support and that he failed to provide the plaintiff with his tax returns since 1990.
On October 10, 2002, the defendant filed a motion in limine requesting that the court preclude the plaintiff from prosecuting her motion for contempt on the basis of equitable estoppel, laches and waiver. The defendant also claims that the motion for contempt should be denied and that the relief sought in the plaintiff's motions violate the Child Support Guidelines as well as agreements of counsel and the parties. The defendant further claims that the plaintiff's conduct confirmed her approval of the agreements involving the Child Support Guideline amount by accepting the weekly payment of $164.73 for eight years and, as a result, there is no arrearage. The plaintiff, in turn, claims that the doctrines of equitable estoppel, laches and waiver are inapplicable, and that the alleged private agreements modifying support orders are ineffective since they were not approved by the court.
The first issue which this court must determine is whether or not the parties' alleged 1994 agreement legally modified the court's original 1989 child support order.
The plaintiff alleges that the original 1989 child support order is still in effect. The defendant alleges in opposition that the order was modified by an agreement between the parties in 1994. The defendant also claims that the child support guidelines supercede all judgments entered on, before or after 1991.
Connecticut General Statute § 46b-86 provides in relevant part that: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . ." (Emphasis added). "[A] support order can only be modified by the court." Brock v. Cavanaugh, 1 Conn. App. 138, 141, 468 A.2d 1242 (1984); see also Lownds v. Lownds, 41 Conn. Sup. 100, 105, 551 A.2d 775 (1988). The reason for this rule is obvious. The court is vested with the ultimate responsibility for determining and safeguarding the best interests of children. Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986).
In Lownds v. Lownds, supra, 41 Conn. Sup. 100, the court (Freed, J.) dealt with circumstances similar to the ones in this case. There, the court ruled that "[a]lthough parties have a statutory right to enter into agreements affecting their children, a trial court has the power to reject or modify such agreements if it determines that such agreements are not equitable . . . It is the duty of the court to enter such orders as it believes are in the best interests of the children, and it is a responsibility that cannot be delegated or abrogated by agreement of the parties." (Citation omitted.) Lownds v. Lownds, supra, p. 105.
"General Statutes § 46b-215b (a) does not require the trial courts to apply the Guidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the Guidelines . . . The purpose of the guidelines is to ensure that a parent responsible for child support does not pay less than the amounts dictated by the guidelines." Amodio v. Amodio, 56 Conn. App. 459, 467, 743 A.2d 1135 (2000). "At the time of the dissolution . . . the court acted properly in awarding more child support than the guidelines provided. The purpose of the child support guidelines is to provide for the adequate support of children. That purpose would be thwarted if a party could not voluntarily agree to pay more than the presumptive amount set by the guidelines as being appropriate . . ." (Emphasis in original) Id., 468. At the time the judgment of dissolution was rendered in the present case, the court was not required to make a specific finding on the record concerning the applicability of the guidelines and properly rendered judgment in accordance with the parties' agreement. Id., 475.
"Parties proposing a child support modification must submit the proposed order to the court for its review and approval. Lownds v. Lownds, supra, p. 105-06; Brock v. Cavanaugh, 1 Conn. App. 138, 141, 468 A.2d 1242 (1984); Ginsburg v. Ginsburg, Superior Court, judicial district of Hartford, Docket No. 303310 (March 20, 1991, Steinberg, J.) ( 3 Conn.L.Rptr. 408)." Miller v. Miller, Superior Court, judicial district of Hartford, Docket No. FA 94 05329665 (January 22, 2002, Dyer, J.).
Therefore, because the September 1994 agreement was never approved by the court, the parties' stipulation did not legally modify the original child support order issued in 1989.
The defendant has also raised the defenses of laches, equitable estoppel and waiver in this case. Those claims are discussed below.
The test to determine whether a party should be equitably estopped from raising a claim is well established. "The doctrine of equitable estoppel prevents a party from asserting a legal claim because it would be unfair or inequitable to allow him to do so." Colvin v. Perkins, Superior Court, judicial district of New Haven, Docket No. FA 89 290355 (May 13, 1996, Alander, J.) ( 18 Conn.L.Rptr. 104). "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Bozzi v. Bozzi, 177 Conn. 232, 241, 413 A.2d 834 (1979); see also Union Carbide Corp. v. Danbury, 257 Conn. 865, 872, 778 A.2d 204 (2001).
"Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Citation omitted; internal quotation marks omitted.) W. v. W., 256 Conn. 657, 661, 779 A.2d 716 (2001).
Under our well-established law, any claim of estoppel is predicated on proof of "two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Union Carbide Corp. v. Danbury, supra, 257 Conn. 873. "An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party . . . The party claiming estoppel has the burden of proof . . ." (Citations omitted.) Herbert S. Newman Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 768, 674 A.2d 1313 (1996). "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995); Sablosky v. Sablosky, 72 Conn. App. 408, 414-15, 805 A.2d 745 (2002). The court recognizes that, "as with other domestic issues, in deciding whether to apply the doctrine of equitable estoppel, courts must act judiciously and with sensitivity to the facts particular to each case." W. v. W., 248 Conn. 487, 503, 728 A.2d 1076 (1999).
In the case of Papcun v. Papcun, 181 Conn. 618, 436 A.2d 282 (1980), the court upheld the trial court's decision, which held that "the defendant had not changed his position in reliance on the plaintiff's nonenforcement of the orders of alimony and support. In the absence of prejudice, estoppel does not exist. The trial court also found that there is nothing in the record to indicate that the defendant did some act to his injury which he otherwise would not have done, which act was induced by any representations by the plaintiff." Papcun v. Papcun, supra, 621-22. The present case involves a similar situation. The evidence presented to this court does not indicate that the plaintiff made inducements to cause the defendant to act to his injury. Furthermore, the defendant has not shown that he has exercised due diligence to know the true state of things with regard to the child support payments or that he lacked any reasonably available means of acquiring this knowledge. The plaintiff did in fact file several motions for contempt even though she accepted the child support payments, giving the defendant notice of her right to enforce the original order. Also, the defendant did have the means to acquire this knowledge regarding the state of the child support since, as he states in his Objection to Plaintiff's Motions for Contempt, that he has continued to communicate with the plaintiff. (Objection p. 13).
The defendant cites the case of Fiorita v. Fiorita, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 92 0126887 (Novack, J.T.R.) for the proposition that he has sustained his burden of establishing equitable estoppel despite that fact that the parties only orally agreed to alter support arrangements. In Fiorita, the minor children, by agreement of the parties, moved in with the defendant, who ceased paying child support to the plaintiff and instead directly supported the children. Fiorita v. Fiorita, supra. The defendant experienced a detriment by relying on this agreement. Id. In the present case, the defendant has presented no credible evidence to warrant a conclusion that he had changed his position or acted to his injury. The court concludes that no estoppel has been proved by the defendant. Lownds v. Lownds, supra, 41 Conn. Sup. 106.
"In Lownds the wife signed a written agreement to reduce the husband's support payments from $1,500 to $300. Husband thereupon reduced his support payments from the original court order of $1,500 and only paid $300 a month for six years. The court held there was no evidence to warrant a conclusion that plaintiff changed his position or acted to his injury under the equitable estoppel theory. Id. Thus, merely altering one's conduct in a manner that is not in conformity with an original judgment is not enough to warrant a finding of `change in position.'" Ginsburg v. Ginsburg, Superior Court, judicial district of Hartford, Docket No. 303310 (March 20, 1991, Steinberg, J.) ( 6 C.S.C.R. 398) ( 3 Conn.L.Rptr. 408).
"Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief in equity." Traggis v. Shawmut Bank Connecticut, N. A., 72 Conn. App. 251, 262, 805 A.2d 105 (2002). "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 486 n. 21, 717 A.2d 1177 (1998); see also Sablosky v. Sablosky, supra, 72 Conn. App. 413. "Lapse of time, alone, does not constitute laches. It must result in prejudice to the defendant as where, for example, the defendant is led to change his position with respect to the matter in question . . . or the delay works a disadvantage to another." (Citation omitted.) LaSalle National Bank v. Shook, 67 Conn. App. 93, 98-99, 787 A.2d 32 (2001).
In the present case, the evidence offered would not allow the court to determine that the plaintiff's delay was "inexcusable." The plaintiff filed several motions for contempt, although she never pursued most of them. The defendant alleges that there was unreasonable and inexcusable delay between 1996 and 2000, when no motions were filed by the plaintiff (or the defendant). Mere lapse of time, however, does not constitute laches; it must result in prejudice. Also, in view of the fact that the defendant made no attempt to determine the true state of the child support agreement and the necessary payments under it, and as well as the fact that the plaintiff filed several motions for contempt, the court cannot say that the plaintiff was guilty of laches.
"Even if [the court] assume[s] arguendo that the plaintiff delayed in filing her . . . motion for contempt and that the delay was inexcusable, the record still does not contain any evidence that the defendant would have been in a more advantageous position had the plaintiff filed her motion earlier." Sablosky v. Sablosky, supra, 72 Conn. App. 413-14. The defendant has not suffered a prejudice as a result of that delay. In order to show a change in position, the defendant should have attempted to legally modify the support order. Absent a showing of prejudice, laches have not been proven.
"Waiver is the intentional relinquishment of a known right." (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 244 Conn. 251, 261 n. 15, 708 A.2d 1378 (1998). "Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 252, 618 A.2d 506 (1992); Sablosky v. Sablosky, supra, 72 Conn. App. 414. The defendant claims that, by accepting payments of $164.73 per week for approximately eight years, the plaintiff has waived her rights under the original judgment.
In Lownds v. Lownds, supra, 41 Conn. Sup. 107, "[t]he plaintiff claim[ed] that, by accepting payments of $300 per month for a period of approximately six years, the defendant ha[d] waived her rights under the original judgment. In support of his contention, the plaintiff cite[d] DiBiaso v. DiBiaso, 17 Conn. Sup. 483 (1952), and Guerrera v. Guerrera, Superior Court, judicial district of Waterbury, Docket No. 35985 (Oct. 14, 1982). The court in each of those cases was persuaded to find the existence of a waiver by the long-term acceptance by one party of a change in a court order when that party could have taken action to protest." However, in Lownds, the court did not find the defense of waiver applicable because the defendant was unable to do anything about the change invoked by the plaintiff since he was outside the jurisdiction of the court. And, as soon as he returned to the jurisdiction, she commenced legal action against him. Id.
In the present case, even though, as noted above, the plaintiff filed no motions for contempt or took any other action between February 5, 1996 and November 2, 2000, she did not waive her right to child support payments under the original order. Before and after this time period, the plaintiff did take action and filed several motions for contempt: October 19, 1995, November 2, 2000, September 12, 2001, January 7, 2002 and May 8, 2002. The plaintiff did pursue the most recent motion for contempt, which is the motion presently before the court. Accordingly, the claim of waiver as a defense is rejected in this case.
Therefore, the court finds that based on the facts presented and credibility of the evidence, the defendant has failed to sustain his burden on the defenses of equitable estoppel, laches and waiver.
In light of those findings, the court must determine whether or not the defendant is in contempt of the court's orders regarding child support.
The plaintiff alleges that the defendant is in contempt of the original court order. "Civil contempt is conduct directed against the rights of the opposing party." (Internal quotation marks omitted.) Emerick v. Emerick, 28 Conn. App. 794, 797, 613 A.2d 1351 (1992). "In order to constitute contempt, a party's conduct must be wilful . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court." (Internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001). "[A]n order of the court must be obeyed until it has been modified or successfully challenged." (Internal quotation marks omitted.) Id., 719. "His willfulness, if any, may be negated by an inability to pay or a mistaken belief that he was not obligated to pay the court order because he erroneously believed that the order had been modified." Lownds v. Lownds, supra, 41 Conn. Sup. 108. "It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." (Internal quotation marks omitted). Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
Although the parties' agreement was not a legal modification, it was evidence of the fact that the defendant believed that he was only obligated to make weekly child support payments of $164.73 pursuant to the Child Support Guidelines, and therefore, there would be no arrearage. The evidence establishes that the plaintiff did accept the weekly child support payments of $164.73 from the defendant.
Based on these facts, the court finds it reasonable that the defendant erroneously believed that the order had been modified and erroneously concluded he was not required to pay the original child support amount during the period of time in question. Therefore, the court finds that the plaintiff has failed to prove willful contempt on the part of the defendant by clear and convincing evidence. Accordingly, plaintiff's motion for contempt is denied.
BY THE COURT
Antonio C. Robaina, J.