Opinion
MMXFA144018650S
12-05-2017
Brittany MORIARTY v. Daniel MORIARTY
UNPUBLISHED OPINION
OPINION
Albis, J.
BACKGROUND
A hearing was held on the above motion on November 29, 2017, at which the parties were the only witnesses. In addition to their testimony and exhibits, the parties submitted a comprehensive Stipulation of Facts concerning, but not limited to, many of the expenditures at issue in the case. The written Stipulation was accepted by the court as Court Exhibit A. Financial issues being in dispute, the financial affidavits of the parties were ordered unsealed.
The marriage of the parties, who have two minor children, was dissolved on July 6, 2015, by a judgment of this court which incorporated by reference the terms of a written agreement of the parties bearing the same date. The most pertinent orders of the court for present purposes are summarized briefly as follows (in the order in which they appear in the agreement incorporated into the judgment), reference being made to the judgment itself for the complete language of the orders. The orders, which are sometimes referred to hereinafter by the name given to each in quotations below, are:
1. " Child Support Order" (Paragraph 5): upon vacating the marital home, the husband was to begin paying child support to the wife in the amount of $280 per week, plus additional child support equal to 15% of his net cash bonuses from his employment.
2. " Award of Marital Home" (Paragraph 11): the husband’s interest in the marital home, title to which was held jointly by the parties at the time of dissolution, was to be conveyed to the wife at or before the time she refinanced the mortgage on the home; upon refinance, the wife was to pay him $45,000 for his share of the equity.
3. " Refinance Orders" (Paragraph 11): the husband was to refinance the mortgage on a second home he owned and retained (a condominium unit rented to a third party) so as to remove the wife’s name from the debt within 60 days after judgment; within 90 days after the husband refinanced the condominium unit mortgage, the wife was obligated to refinance the mortgage on the marital home so as to remove the husband’s name from the debt.
4. " Occupancy Order" (Paragraph 11): The husband was to vacate the marital home no later than October 1, 2015.
5. " Household Expense Order" (Paragraph 11): Until the husband vacated the home, he was to pay the expenses of the mortgage, taxes, insurance, electricity, and cable television. The wife was to contribute the sum of $150 per week toward the household expenses and to pay for the family’s groceries. Upon the husband vacating the home, the wife was to be responsible for all expenses relating to it.
6. " Modification Order" (Paragraph 21): no change or waiver of any provision of the judgment was to be effective unless made in writing, executed by the parties, and submitted to court for the purpoe of modifying the existing orders.
Plaintiff’s motion claims that the defendant failed to vacate the marital home by October 1, 2015, failed to pay all of the child support due under the judgment, and failed to pay all of the household expenses which were his obligation. She seeks orders finding arrearages of child support and sums due her in reimbursement of household expenses she paid while the defendant continued to reside in the home, and orders for the payment of same by the defendant. She also seeks an award of attorneys fees and costs for the prosecution of her motion, and interest on the sums due her.
FINDINGS
In addition to the facts set forth in Court Exhibit A, which are not repeated here, the court finds as follows.
The defendant refinanced the mortgage on his condominium unit in September 2015, and the plaintiff refinanced the mortgage on the marital home on or about November 23, 2015, in accordance or substantially in accordance with the time limits of the Refinance Orders.
As of the time of her refinance of the mortgage on the marital home on or about November 23, 2015, the plaintiff was the sole owner of the home, the defendant having quit claimed his interest therein to her in accordance with the Award of Marital Home.
On or about February 24, 2016, the plaintiff paid the defendant the sum of $40,000 for his share of the equity in the marital home, a sum which was $5,000 less than the amount required under the Award of Marital Home. The reduction was agreed to by the parties in writing, in exchange for the defendant being permitted to retain stock options having an agreed value of $5,000 which he was otherwise required to transfer to the plaintiff under the terms of the judgment. The delay between the wife’s refinance closing and said payment was caused by her decision to pay the $40,000 from the portion of the defendant’s 401k retirement account which was to be transferred to her under the judgment, and which she did not receive until February 2016.
See Plaintiff’s Exhibit 2.
As stipulated orally during the hearing and accepted by the court, the defendant spent an average of $172.50 weekly for groceries for the household during the period from the approximate date of the plaintiff’s refinance of the mortgage on the marital home through July 31, 2016. The court finds that the period in question is 35 weeks long and that the defendant paid a total of approximately $6,038 for groceries during the period.
The defendant entered a contract to buy a new home on or about November 2, 2015, in a transaction known as a " short sale" whereby the seller’s mortgage holder had discretion to determine whether and when there would be a closing of the sale under the contract. The defendant did not advise the plaintiff of his contract until April 2016, near the time when the closing did occur. After the closing, the defendant spent several months making repairs and renovations to his new home while continuing to reside in the marital home. The defendant finally vacated the marital home on or about August 5, 2016, and moved into his new home.
In connection with the individual income tax returns which the parties filed for the 2015 calendar year, they made a verbal agreement after the date of judgment to share equally in the income tax refunds each of them received for the year. As the result of that equalization as calculated by the defendant and accepted by the plaintiff, the defendant- who received the larger tax refund- paid the plaintiff the sum of $6,971 in April 2016. The dissolution judgment is silent as to the issue of the 2015 income tax refunds.
Further findings are set forth in the Discussion and Conclusions sections of this Memorandum of Decision.
DISCUSSION
The language and intent of the subject orders are clear. The husband was obligated to pay the enumerated household expenses for so long as he continued to reside in the marital home, with the benefit of the $150 weekly contribution from the wife and her assumption of responsibility for buying the groceries. Once he vacated the home, his responsibility for those expenses would end, and he would immediately begin to pay weekly child support. The logic of the orders is equally clear: the defendant would provide family support first by paying the specified household expenses until he moved out of the marital home, and thereafter by paying weekly child support.
Unfortunately, in the months following the judgment the parties substituted their own inaccurate memories or flawed interpretations of the judgment for its actual terms. Much of the confusion was caused by the defendant’s continued residence in the marital home after the October 1, 2015, deadline for him to vacate under the Occupancy Order, and even beyond the date of the plaintiff’s mortgage refinance.
To complicate matters further, the parties’ misconceptions about the pertinent orders were not identical. The plaintiff believed that she became solely responsible for the mortgage, taxes, insurance, and utility expenses for the home as of the date of her refinance, because that is when she became the sole owner of the home. For his part, the defendant believed that the Household Expense Order ended on October 1, 2015, even though he continued to reside in the marital home; and that the parties faced a situation thereafter which was not addressed by the judgment.
The parties’ misunderstandings of the judgment arose in good faith. To their credit, during the months following their divorce they were focused on doing what was best for their young children. The parties decided they would not even tell the children about the divorce until the defendant had found a new home, so that they would have a complete living arrangement to present to the children when they told them about the end of the marriage. They sought to minimize the negative impact on the children by avoiding a period of uncertainty about where the children would spend time with each parent under the shared parenting plan. Until the defendant had a new permanent home, the parties agreed to continue living together as a family for the sake of the children.
The defendant’s efforts to acquire a new home, however, took much longer than the plaintiff- and perhaps both parties- expected. She acquiesced in his continued delays, not knowing for months after November 2, 2015, that he had signed a contract to buy a new home. The defendant did not tell her about it because of the uncertainty as to whether or when he would close, given the nature of short sales. The plaintiff did not become adamant about the defendant moving out of the marital home until several months after he had told her about and closed on his purchase of the new home.
In any event, the parties followed the Household Expense Order substantially as written until the approximate time of the plaintiff’s mortgage refinance on November 23, 2015. Thereafter, the product of their misunderstanding of the applicable orders was their verbal agreement to a proposal made by the defendant. Under the agreement, the parties essentially swapped obligations under the Household Expense Order. The plaintiff began paying the mortgage and other expenses specified in the order, and the defendant began paying her $150 per week and buying the groceries.
The plaintiff did not present the bills for the specified expenses to the defendant as she received them after November 2015, nor did she ask him to pay any of them while he resided in the home after that date. The agreement was never reduced to a writing executed by the parties or presented to the court for an order of modification as required by the Modification Order. The amounts that each party expended for the relevant items during the period from November 23, 2015, to July 31, 2016 (shortly before the defendant vacated the marital home) have been established by the written and oral stipulations of the parties referred to above.
Notwithstanding a verbal agreement of the parties, the orders of the court are enforceable unless modified in accordance with the terms of the judgment and approved by the court. See Culver v. Culver, 127 Conn.App. 236 (2011). In the absence of such modification, a party’s performance of his obligations under the verbal agreement does not excuse him from complying with the court orders.
At the time of their verbal agreement regarding household expenses, it does not appear that the parties had any distinct discussion about the Child Support Order. The plaintiff now claims, however, that the defendant’s obligation to pay child support commenced on October 1, 2015, the date by which he was supposed to vacate the marital home.
CONCLUSIONS
The court first finds that the defendant did not willfully violate either of the orders which are the subject of the motion, namely the Child Support Order and the Household Expense Order. As to the Child Support Order, in fact, the court finds that he has not violated it at all. Notwithstanding the plaintiff’s claim that the defendant was obligated to pay child support commencing October 1, 2015, the language of the order is clear that his obligation to pay child support did not commence until he vacated the home. The specific date of October 1, 2015, was important only with respect to the Occupancy Order; the date the defendant actually vacated the premises, not October 1, 2015, was the trigger for the cessation of his payments under the Household Expense Order and the commencement of his payments under the Child Support Order. The plaintiff’s motion seeks to have it both ways, i.e. to charge the defendant for child support commencing October 1, 2015, but to continue to make him responsible for housing expenses until he moved out. Her position on this point is neither equitable nor consistent with the terms of the judgment. It is undisputed that the defendant has made all child support payments coming due since August 5, 2016.
There has been a violation of the Household Expense Order, but the court finds that the violation was not willful. Rather, it was the result of the parties’ respective good faith misunderstandings about the terms of the judgment. After November 23, 2015, neither party did what was required under the Household Expense Order, albeit the net result was much to the financial detriment of the plaintiff. The court does not find the defendant in contempt.
Nevertheless, remedial orders are appropriate to enforce the pertinent orders as written, as the parties’ verbal agreement did not effectively modify the judgment. The defendant paid less under the verbal agreement than he should have paid under the Household Expense Order, and the plaintiff overpaid by an equal amount. The appropriate remedial order is to determine the amount of the defendant’s underpayment and require him to pay it to the plaintiff by way of reimbursement.
The plaintiff’s total payments to third parties for items covered by the Household Expense Order during the period from November 23, 2015, to July 31, 2016, were as follows:
Mortgage payments
$21,427
Real estate taxes
7, 372
Homeowner’s insurance
1, 107
Electricity
2, 730
Cable
731
TOTAL
$33,367
The defendant’s total payments to third parties for items covered by the Household Expense Order during the period from November 23, 2015, to July 31, 2016, consisted of the total sum of $6,038 which he paid for groceries.
The plaintiff also purchased groceries during said period, spending more than $3,000, but since the purchase of groceries was her obligation under the Household Expense Order no adjustment is required for those expenditures.
Under the Household Expense Order as written, each party should have paid the above amount which was paid by the other. Therefore, the defendant preliminarily owes the plaintiff the difference between the two totals, or the sum of $27,329, to correct their respective expenditures.
Next, during the same period the defendant paid to the plaintiff the sum of $150 per week toward household expenses, or a total of $5,588. Under the Household Expense Order, the plaintiff should have paid that amount to the defendant instead. To correct the error, the plaintiff must first return the $5,588 that she received contrary to the order- thus putting the parties back to where they started- and then pay the same amount again to the defendant to satisfy her obligation to pay him $150 per week. To correct the violation of the orders as to the weekly payments, the plaintiff owes the defendant a total of $11,176.
Therefore, starting with the said sum of $27,329 which the defendant owes to the plaintiff, and subtracting the said sum of $11,176 which the plaintiff owes to the defendant, there remains a net amount of $16,153 which the defendant owes to the plaintiff.
The defendant seeks a credit against this obligation for the $6,971 which he paid to the plaintiff in April 2016 under their extra-judicial agreement to equalize tax refunds. He claims that since this payment was neither required by the judgment nor the subject of a written agreement approved by the court, it should be returned to him in the form of a credit against the sum he owes the plaintiff. The court disagrees. The agreement regarding the tax refund was made entirely apart from the parties’ arrangement concerning household expenses, at a time when the parties did not yet realize that the arrangement differed from the court’s orders. They were free to make and carry out an agreement about their assets, i.e. their separate tax refunds, and they did so. The defendant deserves credit for the fair approach he brought to the issue, resulting in his payment of a significant amount that he was not compelled to pay by any court order. But the fact that he made the payment willingly does not entitle him to take it back now by applying it to the sums he should have paid under the judgment. Culver v. Culver, 127 Conn.App. 236 (2011).
The defendant also seeks credit for the amount that the parties agree he could have requested as an income tax refund if he had claimed as deductions on his 2016 return the mortgage interest and real property taxes on the marital home payable by him during 2016 under the Household Expense Order. The court declines to allow such a credit. While the parties stipulate that he might have claimed such a deduction on his tax return and asked for a refund based on it, it has not been proven by a preponderance of the evidence that he would have been entitled to receive or retain that refund. His right to properly deduct the 2016 real estate taxes may have been affected by the fact that he did not own an interest in the marital home at any time during that calendar year. As to the mortgage interest, his right to claim the deduction may be in question for the same reason, combined with the fact that he was not personally liable on the wife’s refinanced mortgage which was paid during 2016.
See 26 § 1.164-6.
See 26 C.F.R. § 1.163-1.
In addition to his misplaced reliance on the parties’ verbal agreement regarding household expenses, the defendant raises special defenses of equitable estoppel, laches, and unjust enrichment. The court finds that he has not sustained his burden of proving any of them. In particular, as to equitable estoppel, he has not proven the due diligence on his own part that is a prerequisite to success on this claim; a simple reading of the language of the judgment would have apprised him of the correct terms and of the need to submit a written agreement for approval by the court to change them. And as to both equitable estoppel and laches, he has not demonstrated any detriment caused to him by the plaintiff’s agreement to the changed terms or by any delay in her seeking enforcement of the orders. Culver v. Culver, supra . While he made the voluntary tax refund equalization payment to the plaintiff in the interim, the court finds the tax refund payment to be separate from the household expense agreement and not made as the result of or in reliance upon that agreement.
Finally, the defendant has not proven that the plaintiff has been unjustly enriched under the circumstances of this case. To the contrary, the evidence shows that she paid substantially more than she should have for household expenses during the time the defendant remained in the marital home beyond the date he was supposed to vacate under the Occupancy Order. Her recoupment of her overpayment is not unjust. Neither does her receipt of the tax refund equalization payment from the defendant constitute unjust enrichment. The payment was the result of the good faith negotiation of a reasonable agreement that was independent of the terms of the judgment and separate from the parties’ unrelated agreement on household expenses.
For the foregoing reasons, the court concludes that remedial orders requiring the defendant to pay $16,153 to the plaintiff are appropriate to correct the violation of the terms of the judgment. Such orders are entered below.
Under all of the circumstances of this case, the court declines to award the plaintiff the legal fees and expenses she requests, or to impose an interest charge as of this date on the sum ordered to be paid to her. As to the legal fees and expenses, the court has not found the defendant to be in contempt and has found that the parties share responsibility for the erroneous application of the terms of the judgment. The court has also considered the alternative grounds advanced by the plaintiff for an award of legal fees and has concluded that under these circumstances no such fees should be awarded.
The orders below provide for interest to accrue if the amount due thereunder is not paid within sixty days.
As to the claim for accrued interest, the plaintiff relies on General Statutes § 37-3a, which provides in pertinent part as follows:
... interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable.
An award of interest in a family matter may be appropriate depending on the circumstances.
" The trial court has the discretion to decide whether to make an award of interest under General Statutes § 37-3a [which] ... provides for interest on money detained after it becomes due and payable." (Citations omitted.) Crowley v. Crowley, 46 Conn.App. 87, 96-97, 699 A.2d 1029 (1997). " The determination of whether ... interest is to be recognized as a proper element of [recovery] is one to be made in view of the demands of justice rather than through the application of any arbitrary rule." (Internal quotation marks omitted.) ... " The question of whether ... interest is a proper element of recovery ordinarily rests upon whether the detention of money is or is not wrongful." Id., at 352, 537 A.2d 157. " When a former spouse is not justified in failing to pay sums due ... the award of interest is proper." (Internal quotation marks omitted.) Dowd v. Dowd, supra, at 86, 899 A.2d 76.Picton v. Picton, 111 Conn.App. 143, 155-56 (2008). In Picton, the court held that it was proper for the trial court to order that interest would begin to accrue if a lump sum payment required by the judgment was not made when due. It has also been held that a trial court is justified in ordering that interest be paid on an alimony and child support arrearage as a sanction upon a finding of contempt for nonpayment. Behrens v. Behrens, 124 Conn.App. 794 (2010).
The present case differs in several important ways from the cited cases in which interest was awarded. Here, there was no provision in the judgment that stated a specific sum or sums to be paid by the defendant by a date or dates certain. In fact, the defendant was not even made aware at the time of the amounts and due dates of the housing expenses for which an award of interest is now sought. He has not been found in contempt. And given the parties’ verbal agreement which they each thought to be consistent with (or at least not contrary to) the terms of the judgment, the court does not find his nonpayment of the housing expenses to be wrongful within the meaning of the case law, nor does the court find an award of interest to be required by the " demands of justice." The court therefore awards no interest, except for the possible future interest payable under these orders now that the defendant’s obligation has been determined.
ORDERS
For the foregoing reasons the court orders as follows:
1. The defendant shall pay to the plaintiff the sum of $16,153 in two equal installments, the first payment to be due on or before the 30th day after the date of these orders and the second on or before the 60th day after the date of these orders.
2. Any portion of the above sum of $16,153 which has not been paid by the 60th day after the date hereof shall accrue interest at the rate of eight percent (8%) per annum beginning on the 61st day after the date hereof until paid in full. Any partial payments after interest has begun to accrue shall be applied first to accrued interest.
SO ORDERED.