Opinion
No. FA-01-0384330-S
May 30, 2006
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR CONTEMPT
On September 4, 2003, the Court issued a Memorandum of Decision dissolving the marriage of the parties, awarding alimony and distributing their property. The Defendant was ordered to pay to the Plaintiff alimony in the amount of $6,000.00 per month for 12 months beginning October 1, 2003 and concluding on September 1, 2004. Additionally, the Defendant was to pay to the Plaintiff 50% of any bonus that he receives during the course of his employment. (Emphasis added.) Beginning in October 2004 until October 2006, the Defendant was ordered to pay alimony in the amount of $4,000.00 per month and 40% of any bonus received. (Emphasis added.)
In 2004, the Defendant paid to the Plaintiff 50% of his annual review bonus, but did not share his "gold star" bonus which he received in May 2004. In September 2004, the Plaintiff filed a Motion to Compel Payment of Alimony and for Sanctions, Postjudgment. The plaintiff's Motion asked the Court to confirm that "any" bonus included any bonus, not just the annual review bonus. On November 9, 2004, orders were entered granting Plaintiff's motion, stating that "any bonus includes all monies received in the form of a bonus." The orders also directed the Defendant to comply with requests for documentation confirming monies paid to him in the form of salary and bonuses. Though the Defendant tendered a check to the Plaintiff that purportedly represented 50% of the gross annual performance bonus, he did not provide the supporting documentation confirming that such amount was proper. Since November 2004, the Defendant has been paying to the Plaintiff her share of the bonus as ordered; however, he has failed to provide the supporting documentation, despite numerous requests by Plaintiff's counsel.
Faced with the Defendant's unwillingness to cooperate, the Plaintiff served the Defendant's employer, Microsoft Corporation, with a subpoena for the Defendant's employment records. The Defendant then filed the first of many protective orders to preclude the Plaintiff from obtaining this information. Microsoft, however, had provided the records before the protective order was filed. The records revealed that the Defendant understated his annual performance bonus for 2004 by $7,470.62. The records also revealed that the Defendant had received a "gold star" bonus of $8,395.00. Pursuant to court orders, the Defendant was obligated to pay the Plaintiff 50% of that "gold star" bonus, but failed to do so.
The Defendant's defiance of the court orders continued on two separate occasions when he withheld certain money from the bonus payments he was obligated to make. First, he withheld $3,000.00 in January 2005 as a credit to himself claiming that he discovered an overpayment of alimony in November 2003. Then, he withheld $4,046.57 in October 2005, advising the Plaintiff in writing that he intended to use those funds to pay the future educational expenses of their son. The Defendant failed to provide the Plaintiff with the supporting documentation regarding the validity of these two withholdings, despite numerous requests. Rather, the Defendant has been stonewalling his conduct with Motions for Protective Order.
A hearing on the Motions for Contempt and Protective order was held on March 20, 2006 and continued on to March 28, March 30, and March 31. On March 28, 2006, a stipulation was entered into and submitted to the court which addressed the issue of certain monies held in escrow, monies due to Plaintiff from the Defendant's 2005 exercises of Microsoft stock options, and procedure as to the future exercises of stock options. The stipulation left unresolved certain issues: 2003 stock awards, 2004 stock awards, continuing authorizations allowing the Plaintiff to communicate directly with Microsoft and obtaining all the necessary and supporting documentation, child's college education expenses, wrongful withholding of certain amounts from 2004 and 2005 alimony bonus payments, and Plaintiff's attorneys fees.
Plaintiff's Motion for Contempt is properly before this court. This court reiterates that the Defendant has continuously disregarded its orders. In fact, the Defendant has been found in contempt previously for failing to maintain car insurance as ordered. This court must also note that there have been post-judgment patterns of obstruction and obfuscation regarding discovery and depositions. The Defendant has filed 7 Motions for Protective Order. The thrust of Defendant's objections claim a "fishing expedition" and that the requests are a form of harassment. The evidence produced at the postjudgment hearings on this matter clearly demonstrates that most of the information requested was essential so that the Plaintiff could determine whether or not the terms of the judgment of dissolution were being complied with. The Defendant takes the position that he shall make the determination of what he will or will not provide. (Emphasis added.) Ultimately, he provided very little absent Plaintiff's aggressive pursuit. This conduct has been carefully considered in the determination of attorneys fees.
In Connecticut, a court order must be followed until it has been modified or successfully challenged. Eldridge v. Eldridge, 244 Conn. 523, 530 (1998). The Defendant has no authority to engage in "self-help" absent a successful motion for modification of a court order. To constitute contempt, a party's conduct must be willful. Behrns v. Behrns, 80 Conn.App. 349, 352 (2002), cert. denied, 261 Conn. 911. The Plaintiff introduced an abundance of evidence demonstrating the willfulness of the Defendant's disregard for court orders, thus satisfying her burden of proof. The court is satisfied with the Plaintiff's proof that the Defendant withheld money from the Plaintiff's alimony bonus payment on two separate occasions without seeking the court's permission. Accordingly, this court finds the Defendant in contempt of court orders.
Where the Court has made a finding of contempt, it has the authority to impose sanctions that include both fines and legal fees. C.G.S. § 46b-87. Moreover, because the award of attorneys fees pursuant to § 46b-87 is punitive, rather than compensatory, the court may consider the Defendant's behavior as an additional factor in determining the necessity and the amount of the attorneys fees. Esposito v. Esposito, 71 Conn.App. 744, 750 (2002).
The Defendant's indulgence in self-help coupled with his failure to provide the Plaintiff with supporting documentation justifying his actions has led to extensive litigation. Accordingly, the Plaintiff has incurred substantial attorneys fees in connection with the Defendant's derogation. At the hearing, the Defendant maintained that attorneys fees are inappropriate because he thought the matter was settled on at least three prior occasions. The Defendant later admitted that, in December 2005, he unilaterally terminated settlement negotiations by ordering his attorney to stop discussions and leave the meeting. If the Defendant had complied with the court orders from the outset, this court would not have before it 12 various motions pending. As such, an award of Plaintiff's attorneys fees is not only appropriate, but mandated.
ORDERS
1. Defendant's 6th and 7th Motions for Protective Order are hereby denied.
2. Plaintiff's Objections to Defendant's 6th and 7th Motions for Protective Order are hereby granted.
3. Plaintiff's Motion for Contempt, Postjudgment dated March 20, 2006, is hereby granted.
4. The Defendant's August 31, 2004 Microsoft stock award of 1,624 shares is a component of his bonus compensation. Plaintiff is entitled to 50% of the gross value of the stock award at such time as the shares vest.
5. The Defendant shall execute a continuing authorization allowing the Plaintiff to communicate directly with Microsoft. This authorization shall include all information relating to Defendant's compensation, bonus payments, or other awards, and the components of Defendant's bonus awards, including stock options/awards for services rendered, grants of stock or deferred compensation awarded as part of any bonus, agreements to defer or accelerate bonus payments or alter the form thereof, transactions summaries for stock awards, vesting schedules or other related documents.
6. The Defendant shall provide all documentation concerning the components of his 2005 stock award of $17,667.72 as reflected on his December 31, 2005 pay stub summary.
7. The Defendant shall transfer to the Plaintiff a one-half interest in all Microsoft shares awarded to the Defendant pursuant to his August 29, 2003 stock award.
The award was received prior to the date of dissolution and, in its Memorandum of Decision, the court ordered the Defendant to transfer to the Plaintiff a one-half interest in his Microsoft options. The Defendant testified during these proceedings that his stock awards were the same as his option awards.
8. The Defendant shall provide Plaintiff with 50% of all stock awarded to him pursuant to his August 31, 2004 stock award or gross value thereof. As that award was made during the time when the Plaintiff was to receive 50% of the Defendant's bonus compensation, she is entitled to 50% of the 2004 award upon vesting.
9. In the event that the Defendant has received or will receive stock awards as a component of his bonus or award compensation during the alimony term, the Defendant is to provide the Plaintiff with 40% of the gross value of the stock awards in accordance with the vesting schedule of the options.
10. This Court takes Judicial Notice of the published annual rates for undergraduate tuition, fees, room and board for a full-time, in-state student at the University of Connecticut as published on the official UConn website for the academic years: 2003-2004, 2004-2005, 2005-2006.
11. With regard to the educational expenses of the parties' child, Bryan, within ninety (90) days the Defendant shall provide copies of all UGMA statements from December 2003 through the date of his appearance, provide a complete accounting of the disposition of the funds withdrawn from Bryan's UGMA accounts, provide documentation supporting the Defendant's reimbursements to himself from Bryan's UGMA accounts or from money taken from the Plaintiff's bonus check.
a. The Defendant is ordered to reimburse the Plaintiff for her expenditures on Bryan's behalf to the extent that he reimbursed himself.
b. This Court retains jurisdiction to determine whether a modification of the parties' obligations for Bryan's educational support pursuant to the terms of the judgment may be warranted under the circumstances.
12. With regard to monies due to the Plaintiff for 2004, the Defendant is to immediately pay to the Plaintiff the following sums:
50% of Gold Star bonus ($8,395): $4,198.00 Underpayment of review bonus alimony: $3,735.00 Credit for over-withheld taxes: $5,546.00 50% of Stock award vested in 2004: $3,986.00 __________ TOTAL: $17,465.00
Less 2004 alimony paid in January 2005: ($4,933.00) __________ Funds due to Plaintiff for 2004: $12,532.00
13. The Defendant is to immediately pay to the Plaintiff the $4,047.00 wrongfully withheld from Plaintiff's 2005 alimony bonus payment.
14. The Defendant is to immediately pay to the Plaintiff the $3,000.00 wrongfully withheld from Plaintiff's 2004 alimony bonus payment.
15. The Defendant is to pay to the plaintiff $30,000.00 for attorneys fees incurred as a result of this protracted and unnecessary litigation.