Opinion
NNHFA054016763
03-27-2018
Roberta MCLEAN v. Christopher MCLEAN
UNPUBLISHED OPINION
OPINION
Klatt, J.
The matter appears before this court on Plaintiff’s Motion for Contempt # 128, alleging a failure to pay child support and alimony orders since the date of the dissolution. The parties stipulated to the amounts owed: $125,794.34 in child support and $551,200.00 in alimony.
The parties’ judgment of dissolution entered on January 5, 2007. The divorce trial was heard over the course of six months as the plaintiff had difficulty locating the defendant to achieve his appearance at trial. The defendant did not appear for the trial even after plaintiff served him with a subpoena; the defendant’s presence at trial was accomplished by capias.
At or near the time that the dissolution was filed, the defendant had been a successful self-employed owner of a number of tanning salons; his personal earnings were greater than $300,000 per year. However, defendant struggled with drug addiction, there was an allegation of an extramarital affair, and those factors led plaintiff to file for divorce in 2005. The tanning business was beginning to at this time struggle financially and the parties did not agree on the value of the business or its’ income producing ability. The defendant testified during the dissolution trial that he was currently employed as a painter/handyman for Bella Vista Property, a local maintenance company, earning a gross sum of $600 per week.
The judgment of dissolution indicated that the court struggled with determining the present income and earning capacity of the defendant due to the lack of reliable evidence regarding defendant’s income and the value of his business. The court ultimately found that it was unable to determine the defendant’s actual present gross and net income, but did find that the defendant had an earning capacity of $171,000. (Judgment, p. 6.) Accordingly, the court set an alimony award of $1060 per week and a child support order of $423 per week. These orders are the subject of the present contempt motion from plaintiff.
This court heard evidence regarding plaintiff’s contempt motion in January and February 2018. Plaintiff testified that defendant never paid the alimony award and only paid $208 week toward child support. She never filed a motion for contempt for the non-payment or underpayment of the financial support orders until the current contempt motion was filed in November 2017.
Defendant testified that he never received notice of the original judgment’s financial orders or the memorandum of decision. He was aware of the wage withholding garnishment for $208 and believed this to be the full amount of his financial obligations. Defendant is still employed in the same capacity as a maintenance worker for Bella Vista Property although his income has increased to gross approximately $900 a week.
Defendant raises two claims in defense to the contempt motion. Defendant first claims he did not receive proper notice of the orders. He testified that he never received notice of the dissolution judgment. Plaintiff, in fact, testified that she was not aware of whether he received notice of the decision. She testified that she had no further contact with defendant since the divorce trial in October 2006. She could not locate the defendant after the divorce trial and was not certain if the memorandum of decision was served on the defendant.
Defendant also asserts the plaintiff’s contempt claims are barred by the equitable doctrine of laches. Defendant claims that plaintiff’s delay of over ten years before filing this contempt motion was inexcusable and resulted in prejudice to the defendant.
" Laches consists of two elements. First there must have been a delay that was inexcusable and, second that delay must have prejudiced the defendant." Bozzi v. Bozzi, 177 Conn. 232, 239 (1979). " Laches bars a [party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the [opposing party]. First, there must have been a delay that was inexcusable, and second, that delay must have prejudiced the [opposing party] ... The mere lapse of time does not constitute laches ... unless it results in prejudice to the opposing party ... as where for example, the [opposing party] is led to change his position with respect to the matter in question." Carpender v. Siegel, 142 Conn.App. 379, 386, 387 (2013) " Laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable ..." Dzilenski v. Dzilenski, 2005 WL 758143 (2005).
In the present case, the court finds that the plaintiff’s delay in bringing this contempt motion was inexcusable. The plaintiff made a conscious deliberate choice to not pursue further enforcement of the support orders from the dissolution judgment and delayed filing the motion for a period of over ten years. It did not appear from her testimony that she was overly concerned by defendant’s failure to pay his financial awards. She made little real effort to contact or locate the defendant despite the fact that he has maintained the same employment for the past twelve years. The court does not credit plaintiff’s testimony that she reasonably feared the defendant. The court finds this testimony vague and inconsistent and appears to be related to events that occurred at a minimum of twelve years ago.
Further, the court finds the defendant was clearly prejudiced by the plaintiff’s delayed filling as defendant is now confronted with support orders in excess of $600,000.
The defendant testified during the motion hearing that he did not know of the specifics of the support orders and that he believed the $208 garnishment was the full payment of his obligations. Plaintiff offered no testimony that opposed this assumption by the defendant. Also, plaintiff accepted payment of the $208 weekly since the date of the judgment without challenging the amount either by filing motions with the court or by asking support services help in collecting the full amount of the child support and alimony awards. The plaintiff was clearly aware of where the defendant was employed and could have easily served the defendant with contempt motions, yet plaintiff took no action to enforce the orders. It is a reasonable inference that she was aware that the defendant was unable to pay and that it was likely the order would be reduced.
In addition, testimony offered during the hearing indicated that Support Enforcement Services (SES) increased defendant’s garnishment to $507 per week in September 2017, reflecting the $423 weekly child support order and $84.60 toward an arrearage. The SES officer indicated that the increase in the wage withholding was not initiated by the filing of any motion, but due to a computer adjustment. The plaintiff did not file her motion until October 31, 2017. In corroboration of his belief that the order was only $208, the defendant immediately challenged the order through support enforcement services; his written defense was that he was current on all support orders.
Defendant credibly testified that he was unaware of the orders and that he had every intention to be compliant with his obligations. It is a reasonable inference that had the defendant been aware of the support orders he would have challenged them sooner. It is also a reasonable inference that had plaintiff sought enforcement of the orders sooner; the defendant would have challenged them before the accumulation of over $600,000 in debt to plaintiff.
At the time of the dissolution, the court found the defendant had an earning capacity of $171,000. That finding and capability is simply no longer true. The fault for this deterioration and loss of earning ability can be directly traced to the defendant. His substance abuse addiction cost him his wife, his children, an affluent lifestyle, and a loss of over a half million in assets. The plaintiff received most of the marital assets as part of the dissolution judgment. Plaintiff is now fully employed, enjoys the support of her family and has over $900,000 in assets. Defendant has since the date of the dissolution been employed at barely above minimum wage as a handyman and has approximately $6,000 in assets. It is neither equitable nor just to enforce an order that defendant was never capable of paying.
The court finds that the defendant has met his burden: the two elements of laches have been established and the plaintiff’s claims are barred.
Plaintiff’s Motion for Contempt is denied.