Opinion
FBTFA084024947.
12-13-2012
Daniel M. LYNCH v. Laurie W. LYNCH.
UNPUBLISHED OPINION
ADELMAN, J.
This divorce action was tried to conclusion before the Superior Court in Bridgeport in August and September 2009. On September 14, 2009 that court (Owens, J.T.R.) entered judgment granting dissolution after finding the marriage had broken down irretrievably. By agreement of the parties and pursuant to a parenting plan order, dated September 9, 2009, annexed to the memorandum of decision as exhibit A, the parties shared physical and legal custody of their children. The plaintiff appealed the trial court's decision to the Appellate Court and was successful in part. The Appellate Court reversed most of the financial orders issued by the trial court and remanded the matter back ruling: " We conclude that the trial court improperly awarded to the defendant 30 percent of the value of the plaintiff's unsold books ... Because we conclude that the court's marital property distribution orders were improper in part, it is necessary to remand the case for reconsideration of all the financial matters." Lynch v. Lynch, 135 Conn.App. 40, 53-54, 43 A.3d 667 (2012). The Appellate Court, however, specifically did not reverse the trial court's orders as to the defendant's motion for modification, pendente lite, filed in early February 2009, which were affirmed. Id., at 58.
The remanded matter was referred to the Regional Family Trial Docket and was heard by the court over a five-day period commencing on October 2, 2012 and concluding on October 19, 2012. The court heard testimony from the two parties and accepted into evidence fifty-two exhibits offered by the plaintiff and two exhibits from the defendant. The parties filed proposed findings of fact and proposed orders simultaneously on November 2, 2012.
Many of the basic facts are not in dispute. The parties married on July 4, 1992 in Geneva, New York and had two children issue of the marriage, both daughters. Neither party nor the children were the recipients of state or municipal assistance. The plaintiff's employment has been, and continues to be, in computer research relating to genealogical study. He had worked for various companies over the years, but has been self-employed since March 2003 when he started Mattatuck Consulting, LLC. It was his testimony that his last job prior to that date was severely hampered by his inability to be able to relocate to Utah to please his employer. Additional job opportunities required him to relocate as well. Those were not pursued. That was because, according to the plaintiff, the defendant refused to move out of Connecticut. She does not dispute the fact that she was not willing to relocate.
His consulting business has been fairly successful and his income has been a combination of consulting, writing and speaking engagements. In 2008, he authored a book titled " Google Your Family Tree." That publication enjoyed some success and boosted his income in that year and the next. He testified that the book is now four years old and in the technology field that is ancient. He claims almost no income from the book at this time although he did admit in cross examination that the book was recently used as a text in course at Boston University, which resulted in some extra book sales, but that he received no direct or other compensation from the college for the use of the text. He also testified that Mattatuck Consulting, LLC has no intrinsic value and, other than some computer equipment, it has virtually no assets. Over the years his self-employment income has ranged from gross earnings of $73,500 with gross income of $37,800 in 2011, to gross earnings of $108,800 with gross income of $64,700 in 2010, and to gross earnings of $150,700 with gross income of $67,600 in 2009. For the current year, he claims a gross income of almost $45,000 through the end of September with gross earnings of almost $67,600.
The defendant was unemployed at the time of the trial having been laid off in January of this year, but she had been employed for most of the marriage. Her employment has been for a variety of employers, all in the areas of business to business sales. The defendant's earnings have ranged from $74,560 in 2009, to $57,800 in 2010, to $71,500 in 2011, and to unemployment currently in the amount of $525 per week.
The plaintiff made a concerted effort during the trial to impeach the defendant's credibility as to the reporting of her earnings and expenses. " It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010). In the present case, although he was successful in establishing some discrepancies between her various financial affidavits and other records, none of the items, either individually or collectively, actually call into question her credibility. Many of the items, such as the fact that she shows the mortgage obligation as an expense when her testimony was that the plaintiff made those payments, relate to differences of opinion in how to complete the financial affidavit. Other items regarding information on the plaintiff's tax returns were also fairly minor and the plaintiff was also shown to have some similar issues. The court found both parties to be rather straight forward in their testimony and generally credible. This is not a case that rises or falls on any level of misrepresentation. Rather, it is a rather straight forward limited contested case involving two hardworking people with some moderate financial success which has been almost totally obliterated by the cost of this long standing litigation.
The court does not put great weight on such matters when it is clear the actual affidavit is created by the attorney based on information from the client. It is the attorney, however, who makes the decision to include or exclude items in the vast majority of cases and it is based on a difference of opinion as to reported obligations regardless of who actually makes the payment versus reporting only actual paid expenses.
In deciding a case that has been remanded for a new hearing on the financial orders the Supreme Court has directed that " [i]n the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of the property." (Internal quotation marks omitted.) Sunbury v. Sunbury, 216 Conn. 673, 583 A.2d 636 (1990). In the present matter, the court will issue its financial orders based on the facts as they existed at the time of the original trial which was mid September 2009. Both parties have also filed motions to modify during the trial. Plaintiff filed his (Docket item # 235) on October 11, 2012 and the defendant filed hers the same day (Docket item # 233). The two motions ask the court to modify the orders to be entered as of September 2009 in light of a variety of changes in the finances since that time. The court will enter orders as of the dissolution date in accordance with Sunbury and then will rule on the two modification motions.
There is a contempt motion filed in October as well on which the court will rule.
There is also a pendente lite motion for contempt filed by the plaintiff in late January 2009 that must be considered. In its decision remanding the case to the Superior Court, the Appellate Court ruled that the original trial court improperly failed to rule on that motion despite indicating that it would as part of the trial decision. Its failure to rule one way or the other " strips that party of a vested property right and constitutes an impermissible retroactive modification of the pendente lite orders in violation of § 46b-86 ... [T]he matter must be remanded for a determination of the amount of pendente lite arrearage to be included in the judgment, along with an appropriate order for its payment." Lynch v. Lynch, supra, 135 Conn.App. at 50. The court has carefully reviewed its notes and the exhibits offered into evidence. It is quite difficult, based on the evidence, to determine if anything were owed by the defendant to the plaintiff for this period of time. A review of exhibits 2a, 39 and 40 would indicate that if there is any money owed from the defendant to the plaintiff, it is a de minimis amount and the court declines to rule further on the issue.
In September 2009, the plaintiff was self-employed and had a gross weekly income of approximately $1,300. The defendant was employed with a gross weekly income at that time of a little over $1,400. The parties are the joint owners of a single-family home located at 163 Beechwood Avenue, Trumbull, Connecticut. The home had a value as listed on the defendant's financial affidavit of $560,000 with a total outstanding mortgage of $210,533 for an estimated equity of $349,467. At the time of the dissolution, the plaintiff had retirement accounts of approximately $114,000 the majority of which was accumulated during the time of marriage. The defendant had deferred income assets valued at $13,600, which is also a marital asset. Both parties have had medical issues in the past. Currently, as well as in 2009, neither has issues that would prevent them from being employed to their fullest capacity.
These amounts represent the full gross income for the year, based on the tax returns and other evidence provided to the court, in a weekly average amount although the defendant's financial affidavit filed at the time of the original trial shows a weekly gross income of $1,077.
There was some evidence from both parties that the value of the retirement accounts had been manipulated in some manner before the start of the dissolution, but the values at the time of the original decision are not in dispute.
With the remanding of the matter to the Superior Court, the parties become subject to the orders as they existed at the time of the original trial, with the exception of the ruling on the defendant's motion to modify the pendente lite orders dated February 4, 2009, in which the court granted that the expenses listed in the December 12, 2008 stipulation should be paid 60 percent by the plaintiff and 40 percent by the defendant. Those expenses included the mortgage, real estate taxes, insurance, all children's expenses, all utilities, life, health and auto insurance premiums and groceries for the family. Parties were to agree on children's expenses, pay their own car expenses, except for the insurance and include no wine or liquor in the grocery bills (exhibit # 38 and docket item # 111).
Having considered all the evidence presented during the trial, including the exhibits and the testimony of the witnesses and having observed their demeanor during such testimony, and having considered such evidence in the light of the applicable statutory criteria in accordance with the direction of the Appellate Court; see Lynch v. Lynch, supra, 135 Conn.App. at 50-51; the court makes the following findings:
A. The parties were intermarried on July 4, 1992 in Geneva, New York;
B. The defendant's birth name is Laurie Wells;
C. The parties have two (2) minor children issue of marriage; Hannah Lynch born, October 6, 1993, and Eliza Lynch born, July 2, 1996;
D. Neither party has been the recipient of state assistance;
E. The allegations of the complaint had been proven and the marriage was determined to have broken down irretrievably and was dissolved on September 14, 2009;
F. Neither party bore a greater degree of fault for said breakdown than the other;
G. The parenting plan entered by the parties and approved by the court in September 2009 remains appropriate and was not remanded by the Appellate Court. The court declines to address those provisions;
H. Both parties were reasonably healthy and able to be employed in their usual occupations on a full-time basis;
I. Both parties had an average gross income in the $1,300 to $1,400 range;
J. The plaintiff, having been employed for a longer period of time during the marriage while the defendant was a full-time mother, had a much larger amount of deferred income assets as of the original trial;
K. The Chase and American Express credit cards in the defendant's name were used for family expenses and shall be considered a joint obligation of the parties;
L. The plaintiff's motion for contempt, pendente lite, dated January 29, 2009 (Docket item # 119) was remanded for consideration by the trial court by the Appellate Court, but the trial court heard no testimony in prosecution of said motion and the plaintiff offered no proposed finding of fact nor any proposed order dealing with the alleged contempt. Therefore, the plaintiff has not met his burden on this motion before this court;
M. The child support guidelines indicated a child support order in the amount of $202 per week paid by the plaintiff to the defendant was the presumptive support payment for the two minor children;
N. It would have been inappropriate and unreasonable to follow the guideline amount at the time of the original trial due to the fact that the parties were still living together and sharing the expenses of the family;
O. Had the family remained intact, the parties would have financially supported their children in their post-secondary educational efforts to the best of their respective ability;
P. The original trial court's order modifying the shared expenses to a 60 percent and 40 percent split between the plaintiff and defendant, respectively, was not remanded and remains in full force and effect retroactive to February 4, 2009; and
Q. The parties are joint owners of the marital home located at 163 Beechwood Avenue in Trumbull, Connecticut and its approximate equity value as of September 2009 was $350,000.
As indicated above, there was some testimony about amounts paid during this period and exhibits offered to detail those amounts. The evidence was not convincing that money was owed in either direction.
Accordingly, after careful consideration of the statutory criteria including but not limited to those as expressed in Connecticut General Statutes, as amended, §§ 46b-81, 46b-82, 46b-56c and 46b-84, as well as the testimony and exhibits presented at trial, the court hereby ORDERS:
1 The parties shall share joint legal and physical custody of the two minor children issue of the marriage;
2 The court hereby deviates from the presumptive support amount to a zero child support order based on the shared legal and physical custodial arrangement and the fact that the family continues to reside together in the marital home sharing expenses;
3 The parties shall share equally all expenses related to the minor children, including but not limited to clothing, medical and dental expenses, extracurricular expenses and enrichment experiences;
3.1 Said order shall apply to the full liability for the dental work done to benefit the minor child Hannah;
3.2 The defendant shall provide medical and dental insurance coverage for the benefit of the minor children as is available to her at reasonable cost defined to mean a cost not exceeding 7.5 percent of her net income;
3.2.1 If the defendant does not have such insurance available and it is available to the plaintiff under the same terms, he shall provide the coverage;
3.2.2 In the event neither parent can provide such coverage for the minor children, they shall cooperate in obtaining or maintaining coverage through the state of Connecticut Husky program, or its successor;
3.3 Said coverage shall be maintained for as long as is allowed under the terms of the applicable insurance contract or the age of twenty-six (26) whichever is the longer;
3.4 All claims for reimbursement by one parent to the other shall be:
3.4.1 In writing and shall contain sufficient information, including documentation, so that the service, date of service, service provider, reason for the service, full cost of such service, the amount of the insurance reimbursement if any and the amount being claimed is owed as the reimbursement is clear;
3.4.2 The parent receiving the request shall pay the amount claimed within thirty (30) days or provide the requesting parent with a written objection to the claim within fourteen (14) days of the receipt of the request. The reimbursement time may be extended to ninety (90) days if the amount, or amounts, in question exceeds $250;
4 The court retains jurisdiction for the post-secondary educational expenses for said minor children pursuant to General Statutes § 46b-56c;
5 The plaintiff shall pay to the defendant periodic alimony in the amount of $100 per week;
5.1 Said alimony shall terminate upon the death of either party or on September 14, 2019, which ever first occurs;
5.2 Said alimony shall be taxable income to the defendant and shall reduce the gross income of the plaintiff for income tax reporting purposes;
6 The marital home shall be listed for sale by a mutually agreed upon realtor and the parties shall follow the reasonable recommendations of such realtor in the marketing, advertising and pricing;
6.1 Until said sale, the parties shall share equally the mortgage obligation, taxes and insurance on said property;
6.2 The net proceeds shall be shared equally by the parties;
6.2.1 The term " net proceeds" shall be interpreted to mean those funds remaining after the payment of all mortgage obligations, real estate commissions, real estate legal fees, conveyance taxes, the outstanding balance of the Chase and American Express credit cards in the defendant's name and all other normal and customary closing cost expenses for such transactions in the Trumbull area of Fairfield County;
6.2.2 Utility costs, whether a liability or a credit, shall be the defendant's alone and shall not be part of the net proceeds allocation;
6.2.3 The cost of any repairs and/or modifications required by a buyer's lender for a closing or reasonably suggested by the realtor shall be shared equally by the parties;
6.2.4 The parties shall accept any reasonable offers for the property as recommended by the realtor;
6.3 The defendant shall have exclusive possession of the marital home pending its sale;
6.4 The court shall retain jurisdiction over the sale of the marital home until completed;
7 Each party shall retain free and clear of any claim from the other their bank accounts, investment accounts, deferred income assets, rights to intellectual property and motor vehicles;
8 The plaintiff shall have the right to a " walk through" inspection of the marital home, not to exceed two hours, at a time to be agreed upon by the parties for the purpose of refreshing his recollection as to the household furnishings and personal property in said home;
8.1 The inspection shall not include the opening of closets or drawers, but shall include access to all rooms including the basement and attic if such rooms exist;
8.2 Each party may have one observer present for the inspection;
8.3 Neither child shall be present for the inspection of the marital home by the plaintiff;
8.4 The plaintiff shall provide the defendant with a list of household items he claims within one week of the inspection and the defendant shall reply indicating her acceptance or rejection of each claimed item within one week of the receipt of plaintiff's list;
8.5 Agreed to items may not be removed from the marital home while it is being marketed for sale without the express permission of the realtor;
8.6 Any disputed items shall be the subject of binding arbitration with an arbitrator to be selected by the parties and the cost of said arbitration to be shared equally by the parties;
8.7 The court retains jurisdiction over the household possessions only for the purpose of accepting or rejecting the arbitration award;
9 The plaintiff's motion for contempt (Docket item # 119) is denied;
10 The defendant shall have the right to claim the minor child Hannah as a dependent for all state and federal income tax filing purposes for as long as the child is eligible for such treatment under the IRS Code;
10.1 The plaintiff shall have the right to claim the minor child Eliza as a dependent for all state and federal income tax filing purposes for as long as the child is eligible for such treatment under the IRS Code;
10.2 When only one child is eligible for such treatment, the parties shall alternate annually the right to claim the dependency exemption with the defendant having the first such opportunity;
10.3 Each party shall execute and deliver in a timely fashion IRS form 8330, or its successor, as necessary to effectuate the provisions of this order;
11 The court adopts and incorporates by reference the orders relating to the federal and state tax returns for the years 2006 and 2008 as if fully set forth herein;
12 Each party shall be responsible for their own legal fees regarding the dissolution of the marriage, but the plaintiff is ordered to pay to the defendant as a legal fee to defend against his appeal the sum of $7,500;
13 Each party shall be liable for the debts in their own names as reflected on their respective financial affidavits unless otherwise ordered above;
14 The defendant is restored to her birth name of Laurie Wells; and
15 All orders issued by the court (Owens, J.T.R.) on September 14, 2009 not remanded by the Appellate Court remain in full force and effect and are adopted by this court and incorporated into this memorandum of decision as if fully set forth herein.
The court would certainly hope that in the event either party feels compelled to appeal this decision, they would agree to remove the sale of the marital home from the effect of the automatic stay pursuant to Practice Book § 61-11. This house needs to be sold as soon as possible and neither party would benefit from any delay in that happening.
Next, since the effective date of the dissolution and the above referenced orders, there have been numerous and substantial changes in the circumstances of both parties. Both parties have filed motions to modify the trial orders. The defendant filed her motion (Docket item # 333) on October 11, 2012. In said motion she alleged that although both parties were residing together with the children at the time of the dissolution, that changed when she obtained exclusive possession of the home in 2010. Furthermore, one of the minor children has attained majority and now attends college. Additionally, the defendant is currently unemployed and is paying for her medical insurance and that of the children through COBRA.
Her motion to modify is labeled as being " pendente lite" in light of the remand by the Appellate Court. Regardless whether is called pendente lite or postjudgment, the impact is the same since the court is considering factors that changed after the end of the first trial.
The plaintiff filed his motion (Docket item # 335) also on October 11, 2012. He claims significant changes, as well including his loss of medical insurance coverage once the dissolution was finalized. He points to the fact that he was forced to vacate the marital home on May 18, 2010, incurring housing costs of his own as well being obligated to contribute to the living expenses of the children and the defendant. He also claims that the recent legislation passed in Connecticut that obligates out of state internet retailers to collect Connecticut sales tax in instances where they pay commissions to their independent contractors or other representatives who reside and do business in the state, has had a direct and negative impact on his income. Although there may have been some immediate reduction, his reported income does not support this claim in the long term.
House Bill # 1239 which repealed and replaced Connecticut General Statute § 12-407 effective July 1, 2011. The legislation was commonly referred to as the " Amazon Internet Sales Tax" bill.
In regard to modification " [t]he party seeking [such] modification bears the burden of showing the existence of a substantial change in circumstances." Gorton v. Gorton, 80 Conn.App. 52, 54, 832 A.2d 675 (2003). Moreover, the party " must clearly and definitely establish [a] substantial change of the circumstances of either party which demonstrates that continuation of the prior order would be unfair and improper." Gleason v. Gleason, 16 Conn.App. 134, 136, 546 A.2d 966 (1988). " To obtain a modification, the moving party must [also] demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order." Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994).
In the present case, both parties have easily met their respective burdens of showing a substantial change in circumstances. It is unfortunate that the delay caused by the appeal has exacerbated those changes. The parties stopped residing together as of May 18, 2010, but all the older pendente lite orders remained in effect. His income has decreased somewhat over the years with the aging of his book and the resulting lower sales. This is not to be unexpected since his income jumped up when the book was originally published and his pendente lite alimony payment was increased for a short period of time to reflect that jump. The evidence presented is that his gross income for 2011 was under $38,000 and that his current income is projected to be approximately $60,000 based on his gross weekly income net of business expenses of $1,161. The defendant's income is currently limited to her unemployment compensation which is a net amount of $525 per week. Since the original trial, her income has fluctuated from a low of less than $58,000 in 2010 to a high of over $82,000 in 2011, not including her current unemployment.
The order to the plaintiff to vacate the marital home was entered on December 10, 2009 but due to the appeal and stays the plaintiff did not actually leave until the May 2010 date.
The plaintiff offered the court an interesting analysis of the earning capacities of the two parties in his proposed findings of fact. The chart below created by the plaintiff shows the gross earnings for each party from 2009-2012. He notes that if you exclude each party's lowest year's earnings, the weekly average is not all that far apart.
Gross Earnings
Daniel Lynch
Laurie Lynch
2009
$ 67, 598
$ 74, 661
2010
$ 64, 767
$ 57, 557
2011
$ 82, 239
2012 (*$44,122 extended out to full year)
* $ 58, 829
____
3-year Total:
$191,194
$214,457
3-year Average:
$ 63, 731
$ 71, 486
Weekly Average:
$ 1, 226
$ 1, 375
Note: 3-year totals exclude Plaintiff's uncharacteristically low 2011 reflecting impact of Amazon Sales Tax legislation. This is akin to Defendant's 2012 prolonged unemployment. Excluding the lowest of the last four (4) years and using a 3-year average provides a more equitable measure of earning capacities.(Docket item # 140, 15).
The plaintiff also suggests that his " be adjusted downward by $5,000-$8,000 per year because, self-employed, he must pay his own health insurance, and by another 4 percent (net after deduction) because he must pay 13.5 percent self employment taxes." The court deals in gross income amounts in calculation child support and net income figures for alimony; Cleary v. Cleary, 103 Conn.App. 798, 801-04, 930 A.2d 811 (2007); Ludgin v. McGowan, 64 Conn.App. 355, 780 A.2d 198 (2001); but the court is not required to consider tax consequences of its orders. See Powers v. Powers, 186 Conn. 8, 9-10, 438 A.2d 846 (1982); Rolla v. Rolla, 48 Conn.App. 732, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998).
Even if the court considers the years that the plaintiff excluded from his calculation, their earning capacities are not that far apart with average weekly gross incomes of $1,101 and $1,247 respectively. Although the plaintiff offered this chart to promote his claim for alimony from the defendant, the court finds that the earning capacities of the parties are remarkably close.
The income figures for the missing years in the chart are $37,869 for the plaintiff in the year 2011 and $44,993 projected income for the defendant in 2012 including salary paid through the end of March by Dunn & Bradstreet and her gross unemployment compensation through the end of this calendar year.
Furthermore, the Supreme Court in Gay v. Gay, 266 Conn. 641, 835 A.2d 1 (2003), emphasized that " [o]nce a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony ... are relevant to the question of modification ..." (Internal quotation marks omitted .) See also Shearn v. Shearn, 50 Conn.App. 225, 228, 717 A.2d 793 (1998) (stating generally same criteria are relevant in deciding whether decree may be modified as making initial award such as needs and financial resources of each of the parties, causes for dissolution of marriage, and age, health, station, occupation, employability and amount and sources of income). Therefore, consideration of earnings or earning capacity alone, would not lead the court to modify its orders as there are many other factors for the court to consider in deciding both whether or not to award or modify alimony as detailed in General Statutes § 46b-82 and § 46b-86. The fact that the living situations have changed and the reduction in the number of minor children would, on the other hand, suggest significant changes.
As indicated above, the parties separated when the plaintiff finally vacated the marital home on May 18, 2010 pursuant to a court order entered on December 10, 2009. The testimony at trial was that once that happened, the older daughter did not cooperate in the shared physical custody arrangements although her younger sister did. The older child reached majority almost ten months later. The court calculates the child support for the one child only using 2010 income figures at $148 per week resulting in a child support obligation of the plaintiff to the defendant in the amount of $5,654 .97. The court would find that it was appropriate not to consider the younger child in the calculation since the evidence presented was that her care was shared by the parties in a fairly equal way. The credible evidence at trial was that the plaintiff paid child support totaling $17,615 creating a child support overpayment of $11,967.
There were nine months and eighteen days between the plaintiff vacating the marital home and the older child reaching majority.
The oldest child is now attending college and is in her sophomore year. Currently the evidence is that the cost is being paid by her maternal aunt and uncle, but the parents of this young lady have an obligation to assist in this cost and they have the ability to do that to a certain degree.
The original alimony order which was vacated and remanded was $200 per week. The credible evidence at trial was the plaintiff paid a total of $26,215 in alimony. He would owe, based on the new order of $100 per week, a total of $17,000 through the week ending December 15, 2012, thereby creating an alimony overpayment of $9,215 for that time period. The alimony overpayment, however, may be further considered in light of the tax consequences of the payments to both parties. See Powers v. Powers, 186 Conn. 8, 438 A.2d 846 (1982). See also Rolla v. Rolla, 48 Conn.App. 732, 746-47, 712 A.2d 440 (1998) (further explaining that a court may consider tax consequences of its orders in dissolution actions and noting that cases have always used permissive rather than mandatory language with reference to court's consideration of consequences). In this case, the plaintiff received a favorable tax treatment for the money paid in alimony on both his federal and state income taxes for each year and the defendant paid additional taxes on the alimony income. The calculation of that impact is beyond the expertise of the court and needs to be determined by an appropriate tax professional. The court will direct the parties to hire such an individual to prepare a determination of the actual overage paid in consideration of the federal and state taxes. They shall share the cost of such a professional equally and provide him with the documents and information so requested by that individual to carry out the task. In the event that they cannot agree on one individual, they may each hire their own professional at their sole expense and submit competing calculations to the court for a final determination of the overage. Such determination must be presented to the court no later than the close of business on January 31, 2013. The court will then either issue a supplemental decision or hold an additional hearing on the issue if that is deemed to be necessary.
A major portion of the evidence presented at trial concerned which party paid what during the period of time the matter was under appeal. It is the plaintiff's position that he grossly overpaid his obligations and the defendant should be ordered to reimburse him for that overpayment. Some of his argument is certainly persuasive, but other parts are not. Among the latter are his claims that his housing costs and medical insurance costs should be considered joint expenses. It is his claim that when the defendant reported to her employer that she was now divorced after the original decision was issued and he became ineligible for coverage as her spouse, she should share in the increased cost of his coverage. The court ruled during the trial that the defendant did not violate the automatic orders by her actions and that for her to attempt to retain him on her employer-provided coverage after the dissolution would have likely constituted a potential fraud on her employer and the insurance company.
There is no dispute that such cost increased and that he is presently without medical insurance coverage.
He also argued that since they were sharing expenses under the orders of the original decree pending the sale of the house, once he vacated the home his new rental and utilities costs should be shared along with the expenses of the marital home. The court does not accept that argument. Sharing the cost of the marital home was to preserve the jointly held asset for the benefit of both parties; the plaintiff's personal living expenses should not be the defendant's obligation and vice versa.
What the court does find persuasive, however, is that there were very unequal amounts paid by the parties between the date of the dissolution and the present. Those amounts require adjustment under the court's present orders. The plaintiff paid a total of $54,524.26 in expenses for the benefit of the defendant for which he is entitled to reimbursement. The defendant also claims to have paid expenses for the benefit of the plaintiff for which she seeks reimbursement as well. Although the plaintiff disputes many of her claims, he does concede in his proposed findings and orders (Docket item # 140, 16-17) that she incurred at least $59,144 in what should be shared expenses; she claims the amount exceeds $100,000. A review of the evidence does support the plaintiff's claim that at least some of the defendant's claimed expenses are being counted twice since some are charged to credit cards and it appears that some of the expenses are detailed as an expense and then the credit card payment is also included. Eliminating the credit card payments from her claim leaves the plaintiff owing her an amount between the conceded $59,144 and the claimed $65,000. The court will use a compromise figure of $62,072 which would leave the plaintiff owing her a reimbursement of $31,036. The net figure, therefore, owed by the defendant to the plaintiff would be $23,488.26.
They are as follows: mortgage including taxes and insurance $46,031.86 representing the defendant's one-half share; her half of the heating oil expense while residing together $2,656.83; heating oil purchased for the home after he vacated $2,232.52; her half of the electric bill during cohabitation $1,122.79; her one-half of the sewer assessment charges $2,426.26; and sewer use fees after he vacated $54.
The defendant has filed a contempt motion (Docket item # 334) alleging that the plaintiff failed and refused to pay to the defendant the court-ordered alimony and child support in the total weekly amount of $335. The plaintiff admits that he stopped making the payments and offered no real reason for that decision. Ironically, he paid the obligation for almost all of the time his appeal was pending as is required by § 61-11(b) of the Practice Book and only stopped some thirteen weeks before the order was vacated and remanded for a new hearing.
In Culver v. Culver, 127 Conn.App. 236, 17 A.3d 1048, cert. denied, 301 Conn. 929, 23 A.3d 724 (2011), the Appellate Court stated: " In Connecticut, the general rule is that a court order must be followed until it has been modified or successfully challenged ... Our Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order of the court must be obeyed until it has been modified or successfully challenged." (Citations omitted; internal quotation marks omitted.) Moreover, " a civil contempt [may] involve a wilful failure to comply with a then outstanding court order ... A finding of contempt depends upon the facts and circumstances surrounding it." (Citations omitted; internal quotation marks omitted.) Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). Defendant's motion in this matter is granted and the corresponding objection filed by the plaintiff is overruled. The plaintiff is found to be in willful contempt of the orders of the court and owes the defendant alimony in the amount of $2,600 and child support in the amount of $1,755 for a total of $4,355. The defendant is awarded legal fees of $750 for the drafting and prosecution of the motion.
Plaintiff also filed a contempt motion (Docket item # 336) alleging the failure of the defendant to obey an order of the court to provide her accounting of expenses she was claiming she paid that was entered on December 16, 2010 in response to his motion (Docket item # 179). This issue is now moot as the plaintiff has, in his proposed findings and orders, conceded as the expenses claimed by the defendant. The motion is denied.
Both parties agreed that they received a payment from their homeowner's insurance company for damage to the marital home that happened after the original trial and that said proceeds should be shared equally. The amount of the check received (exhibit # 26) is $2,767.48. The money may be divided equally with each party to receive $1,233.74.
Testimony during the trial also established that a judgment lien had been placed on the marital property by the plaintiff's former counsel and that cost should be the plaintiff's sole liability.
Accordingly, after careful consideration of the statutory criteria and that expressed in our case law as well as the testimony and exhibits presented at trial, the court hereby enters the following additional orders:
15 The plaintiff's motion to modify, postjudgment (Docket item # 335) and the defendant's motion to modify, pendente lite (Docket item # 333) are granted as follows:
15.1 Effective May 18, 2010 the plaintiff shall pay to the defendant child support for the benefit of the minor child Hannah in the amount of $148 per week;
15.2 Said support shall terminate on that child's eighteenth (18) birthday or October 6, 2011;
15.3 The defendant shall reimburse the plaintiff for his overpayment of child support in the amount of $11,967 in accordance with terms set forth below;
16 Each party is to contribute up to one-third of the post-secondary expenses of the older child as allowed under the provisions of General Statutes § 46b-56c not to exceed $5,000 per academic year retroactive to the start of her entrance to college;
16.1 Such payments shall be made as reimbursement to the maternal aunt and uncle while they are paying, but may be paid directly to the educational institution in the event such gifts cease while the costs remain;
16.2 No orders are entered at this time concerning potential post-secondary educational costs of the younger child although this is a matter over which the court has retained jurisdiction;
17 In the event that the marital property is encumbered by a lien against either of the two parties, said expense shall be the sole liability of the party against whom the lien lies and shall not be a shared expense as detailed in Order # 6.21 above;
18 The defendant's motion for contempt (Docket item # 334) is granted and the plaintiff is found to be in contempt of the court order and he shall pay to the defendant the unpaid alimony and child support in the amount of $4,355 plus legal fees in the amount of $750 for a total payment of $5,105 in accordance with terms set forth below;
19 The plaintiff overpaid his alimony obligation to the defendant in an amount to be determined;
19.1 The parties shall hire an appropriate tax professional to determine of the actual alimony overage paid in consideration of the federal and state tax consequences to both parties as a result of such payments;
19.2 They shall share the cost of such a professional equally and provide that individual with the documents and information necessary to carry out the task;
19.3 In the event that they cannot agree on one individual, they may each hire their own professional at their sole expense and submit competing calculations to the court for a final determination of the overage;
19.4 The calculation, whether a joint or individual effort, shall be filed with the court no later than the close of business on January 31, 2013. The court will then either issue a supplemental decision regarding the alimony overage or hold an additional hearing on the issue if that is deemed to be necessary;
20 The Defendant shall reimburse to the plaintiff the sum of $23,488.26 representing the overpayment of shared expenses prior to the start of the current trial and said payment shall be made in accordance with terms set forth below;
21 The parties shall share equally the insurance reimbursement check that was paid to them for damage to the marital home in the amount of $2,767.48;
22 The plaintiff's motion for contempt, postjudgment (Docket item # 336) is denied;
23 The defendant shall reimburse the funds owed to the plaintiff as detailed above as follows:
23.1 The sum owed, including the final calculation of the alimony overage to be determined at a later date, shall be paid in full from her share of the net proceeds from the sale of the marital home so long as that reimbursement does not exceed fifty percent (50%) of her share;
23.2 To the extent that the reimbursement payment exceeds such fifty percent (50%) share, the amount above that mark, it shall be paid in one hundred monthly installments without any interest accruing; and 23.3 If the total amount has not been paid in full by the last monthly installment, then interest shall accrue on the full original amount owed at the rate of ten percent (10%) annually, compounding simply, commencing on the date of the closing of the marital home transfer.