Opinion
FSTFA124023432S
08-03-2018
Julie PAGNOZZI v. Philip DE TERLIZZI
UNPUBLISHED OPINION
SOMMER, J.
I. Introduction and Factual Findings
The marriage of the parties was dissolved on March 7, 2014. There is one child of the marriage, Philip Christian born September 21, 2007. The defendant filed the subject motion for modification of child support on October 31, 2017 and the plaintiff filed a motion for contempt on February 7, 2018 relating to the alleged refusal by defendant to contribute to child care expenses as ordered by the court. The defendant filed an objection to the motion for contempt. The court conducted an evidentiary hearing on March 29, 2018 at which both sides testified. The plaintiff was represented by counsel. The defendant was self-represented for the purpose of these proceedings. The court has considered the provisions of Conn. Gen. Stat. 46b-86 and Conn. Gen. Stat 46b-87 as applicable to relevant, credible evidence. The court hereby makes the following factual findings.
Case History and Court Orders
At the time of judgment of dissolution, the parties agreed to a shared parenting plan in which the plaintiff had parenting access with the child 60% of the time and the defendant had parenting access with the child 40% of the time. Specifically, under Article V, Child Support in Paragraph 5.1 of their separation agreement the parties agreed:
The parties agree that based on a variety of circumstances, including custody provisions provided for in the Parenting Plan, a coordination of total family support (including division of assets, and tax planning consideration contained herein), and the best interests of the child, a deviation from the presumptive child support amount is appropriate and neither party shall pay child support to the other. Neither party is waiving his or her right to receive child support in the future.
After completion of a comprehensive family relations report, the plaintiff filed a postjudgment motion for modification of custody on October 11, 2016 (# 197.01). Shortly before the hearing on the motion for modification, the parties agreed to modify their parenting plan to joint legal custody and primary physical custody with the plaintiff in recognition of the fact that at that time, the child was residing full time with the plaintiff mother. The parties also agreed to address the issue of child support in a separate hearing. On February 22, 2017, the parties submitted a Stipulation resolving the Motion for Modification (# 203.00) which was adopted and made a court order.
On February 24, 2017, the plaintiff filed a Motion for Modification of Child Support (# 204.01). Following a trial before the Court (Tindill, J.) the defendant was ordered to pay $193.00 per week in child support a total of $836.33 per month or $10,036.00 per year and $38.60 per week against an arrearage of $2,702.00. The combined weekly current support order and arrearage payment as ordered by the Court was $231.60 per week. Judge Tindill also ordered that "[t]he Defendant shall pay 27% of any work-related childcare costs and unreimbursed medical expenses not contemplated or specified by the parties’ court-ordered stipulation (see Article II, paragraphs 2.3, 2.5, 2.6, and Article III (inclusive) of # 203)."
Plaintiff’s Motion for Contempt # 243.00
At all relevant times the defendant has been employed by County TV and Appliance, an independent retail appliance store in Stamford, Connecticut. Shortly after the entry of the above court order, the defendant relocated from Stamford, Connecticut to Cape Coral, Florida with his new wife and their child. He represented to the court that he intended to continue to work for County TV and Appliance after relocating to Florida with his second wife and the child of that marriage. As a result of the defendant’s voluntary relocation to Florida, the plaintiff has sole child care responsibilities including but not limited to, arranging for care of the parties’ son before and after school, arranging transportation to school, sports and other activities, and child care while she has to work. The plaintiff owns and operates a high end kitchen and bath design business. Without the availability of the defendant to share child care responsibilities, the cost of daycare necessary for the plaintiff to continue to operate her business has increased to a range of $400.00 to $500.00 a week. Despite repeated requests, the defendant has failed to reimburse the plaintiff for 27% of work-related child care costs in violation of the clear and unambiguous orders of Judge Tindill issued on June 13, 2017 and June 15, 2017.
At the time of the hearing, the defendant was current on payment of all the weekly child support orders. However one month prior to the hearing, the defendant was released from employment by his Connecticut employer. For this reason he is now seeking a reduction in his child support obligations to zero. The defendant claims that a marketing position at County TV and Appliance is not available in Florida and that his earning potential is substantially reduced from what he was making in Connecticut. The defendant voluntarily placed his marketing position with County TV and Appliance in jeopardy when he moved to Florida. It is not surprising that his ability to perform a marketing role for a local retail business was negatively affected by his lack of proximity to the actual local retail market. His employer is not part of a national chain with outlets in Florida. The Defendant may have had reasons for wanting to live in Florida but it was unrealistic and unwise for him to make the decision to relocate without securing employment that would enable him to fulfill his court-ordered financial obligations. The defendant did not offer any credible evidence that he is not capable of performing marketing functions for any other employer in the Cape Coral area or similar functions for a national retail chain. He testified that he has just begun to look for employment in his field in Florida and wants relief from his financial obligations for that reason. He also testified vaguely that he may start his own business. Review of his financial affidavit reflects that he has substantial savings from which to pay the order of child support and work-related child care expenses. The defendant recently purchased a home in Florida for his new wife and child. He failed to offer any credible excuse for non-payment of his child support obligations.
The plaintiff testified credibly that the income which she earns from her business, D & D Homes, in Darien, Connecticut has declined in recent years. The business supplies plumbing fixtures, tile, and specialty fixtures for kitchen and bathrooms in luxury and high end homes and apartments in lower Fairfield County. The market demand in this area for homes typically designed and built by individuals willing to pay luxury prices has been substantially weakened. The plaintiff testified that many of the contractors and architects with whom she has worked in the past have not started new projects in over a year and that many of her customers have left the area for locations in other states.
The reduction in business income has forced the plaintiff to reduce her staff and take on more responsibility herself. These additional functions require her to spend more time at her business to insure the continuing health of the enterprise. This business necessity has resulted in increased child care costs. In addition to regular weekday work hours the plaintiff must be available to meet with customers in the evening and on weekends to accommodate their schedules. The work schedule for both the plaintiff and the school and activity schedule for the minor child vary week to week. The nature of her business is not susceptible to regular predictable hours that would enable her to take advantage of after school scheduled programs for child care. The parties’ son requires supervision and transportation to and from school and activities as well as care when she works evenings and weekends.
The defendant has objected to the cost of child care and the fact that the Plaintiff incurs expenses for individual caregivers which are higher than the cost of the after school YMCA drops programs he suggests. However, such programs do not meet the Plaintiff’s child care needs due to the above factors, specifically, the varying hours for mother’s work, especially the irregular hours and evening and weekend demands on her schedule. Furthermore, the Defendant’s decision to relocate to Florida has increased the Plaintiff’s need for outside care because he has made himself unavailable to care for the child while she must work. The court finds that the plaintiff has chosen the most reasonable child care option under the circumstances and that it is necessary so that she can provide for herself and their son. The court agrees that the Plaintiff has had no other reasonable choice but to hire people to care for her son and take him to school and to various activities in which he is enrolled while she works.
In this case, Judge Tindill’s order anticipates that the Defendant reside in Connecticut and be available to care for the child before the Plaintiff incurred child care expenses under Article II paragraph 2.65 of the February 22, 2017 stipulation (# 203). That was the only reasonable basis for the Defendant to object to child care expenses. The Child Support Guidelines do not permit the non-custodial parent to challenge the "reasonableness" of the cost of the child care based upon what that parent claims he can afford or to critique the noncustodial parent’s selection of a child care provider. Under the Child Support Guidelines the "reasonableness" of the cost relates to licensed or qualified providers, and courts must fashion orders that account for the reasonable cost of care. Pressley v. Johnson, 173 Conn.App. 402, 409 (2017). In this case $15.00 an hour is a reasonable cost for after school care by a licensed adult driver for a child in Darien, Connecticut. In addition, the Defendant’s share is only 27% of those expenses while the Plaintiff’s reduced income has actually increased the financial burden of her child care costs.
In addition to claiming that his child care contribution should be reduced to zero, the Defendant refuses to pay his court-ordered 27% share of child care expenses insisting that he has the right to approve the amount and source of the child care that the plaintiff must obtain for her to maintain the business which is her sole source of income. He cites the agreement entered in February 22, 2017 which he claims child support was excluded from the orders of the court. The obligation to contribute to child care is not a negotiated expense under the February 22, 2017 agreement. Rather, it is part of the statutory order for child support under Connecticut General Statutes and the Connecticut Child Support. The Defendant voluntarily chose to relocate and remove himself from availability for child care. His decision is a substantial factor in the increased need for child care. He cannot complain that the plaintiff has made child care decisions that enable her to provide service to her customers while assuring the safety and ability of their son to participate in activities.
According to the credible testimony of the Plaintiff and review of her financial affidavit it is evident that she has experienced financial and time constraints since the dissolution. She has had to borrow money and has taken out a line of credit on her business to maintain her home and business as well as to support the parties’ son. Her income has been reduced substantially to approximately $100,000.00 a year. She has reduced the number of her employees due to the weakened kitchen and bath luxury market demand. As a result, she is working longer hours with less flexibility for child care.
In contrast, review of the Defendant’s financial affidavit indicates that he has substantial assets available to him including savings of over $53,000.00. At the time of dissolution he received a property settlement of $400,000.00 from the Plaintiff. As noted above, he recently bought a home in Florida for his new wife and child. He also testified that he had received a $5,000.00 bonus from his former employer. Although he was unemployed at the time of the hearing, he was actually receiving as much or more per calendar month than he received when the child support order was set.
The court further concludes that the Defendant’s arguments in opposition to the Plaintiff’s insistence that he contribute 27% of the childcare expenses as court ordered, i.e., that he has the right to approve the plaintiff’s choice of child care in advance, that she should rely on a drop off program at the local YMCA with hours that do not accommodate her work needs, that the amount she pays for a responsible adult to drive their son to school and activities is too high or that the plaintiff can arrange her schedule "around" their son are all without merit. The court finds by the required clear and convincing standard of evidence that the Defendant has willfully refused to contribute the court-ordered 27% share of qualified child care expenses for the parties’ minor son in violation of clear and unambiguous court orders.
The Defendant made a voluntary choice to relocate to Florida which reasonably risked his continued employment in a marketing capacity for a local retail appliance store. His subsequent unemployment does not excuse his failure to pay child support. Furthermore, his criticism of the Plaintiff’s child care arrangements and their cost is unjustified. The Defendant has willfully and intentionally violated clear and unambiguous child support orders. The court further finds that the Defendant has the financial resources to comply with the subject court orders.
Defendant’s Motion for Modification of Child Support # 232.01
The same facts regarding the physical custody of the minor child and the parties’ income which the court considered and found above apply to the motion for modification of child support. The child has been living with the plaintiff exclusively since the defendant relocated to Florida. The existing child support obligation of the defendant is $193.00 per week. The court has found that any change in the defendant’s income was due to his own voluntary decision to relocate to Florida which placed the continuation of his employment at a local retail appliance store in jeopardy. Under the terms of the parties’ agreement, it is therefore appropriate for the court to order child support based on the application of the child support guidelines to their incomes. The court has again reviewed the parties’ financial affidavits and the defendant’s claims as they relate to his motion for modification of child support. Any change in the defendant’s income is the result of his voluntary decision to relocate to Florida, a move which predictably placed his continued employment in a marketing capacity at County TV and Appliance at risk of termination.
II. APPLICABLE LAW AND ANALYSIS MODIFICATION OF CHILD SUPPORT
General Statute § 46b-86 permits this Court to modify child support upon a substantial change of circumstances which may include change of custody. Under that statute, the Court may:
Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support, an order for alimony or support pendente lite or an order requiring either party to maintain life insurance for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the 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, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before, on or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution.
The Court must apply the Child Support and Arrearage Guidelines. The law provides:
The Commission for Child Support Guidelines is established to issue child support and arrearage guidelines to ensure the appropriateness of criteria for the establishment of child support awards and to review and issue updated guidelines every four years. Such guidelines shall ensure, subject to section 46b-215c, that current support, health care coverage, child care contribution and orders of payment on any arrearage and past due support shall be based on the income of both parents and the obligor’s ability to pay. Such guidelines shall also ensure the appropriateness of periodic payment orders on arrearages when the obligor (1) is the child’s legal guardian and resides with the child.
Conn. Gen. Stat. § 46b-215a. When there is substantial change of circumstances to justify a change in the child support order, the law is clear:
The guidelines incorporate these statutory rules and contain a "schedule" for calculating "the basic child support obligation," which is based on the number of children in the family and the combined net weekly income of the parents. Regs., Conn. State Agencies § 46b-215a-2b(f). Consistent with General Statutes § 46b-215b(a), the guidelines provide that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that the presumptive support amount would be inequitable or inappropriate. Regs., Conn. State Agencies § 46b-215a-3(a). The finding must include a statement of the presumptive support amount and explain how application of the deviation criteria justify the variance. Id. ; see also General Statutes § 46b-215b(a). This court has stated that the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to "facilitate appellate review in those cases in which the trial court finds that a deviation is justified." Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994). In other words, the finding "will enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion." Id.Kiniry v. Kiniry, 299 Conn. 308, 319-20, 9 A.3d 708, 716-17 (2010).
The Plaintiff argues that to the extent that the Defendant is requesting a deviation from the guidelines under the facts of this case to enter an order of no child support, statutory, child support guidelines and judicial standards do not support such an order. The Court concurs. The question that drives public policy in all matters concerning a parent’s obligation to provide for his or her child’s needs is the best interests of the child. Such interests are not served by having no child support order.
The Defendant also argues that he has experienced decreased earning capacity since relocating to Florida. Where such an argument is made in the context of a modification of a child support order, a Court must consider not only the parties’ current employment but the parties’ earning capacity. The Appellate Court has said:
As earning capacity is an amount which a person can realistically be expected to earn considering such things as his [or her] vocational skills, employability, age and health; (internal quotation marks omitted) Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007); the plaintiff had the burden of demonstrating a change to one or more of those factors. See Angle v. Angle, 100 Conn.App. 763, 773-74, 920 A.2d 1018 (2007) (affirming trial court’s determination that defendant’s post-divorce incarceration was not a substantial change to his earning capacity); see also Wanatowicz v. Wanatowidz, 12 Conn.App. 616, 619, 533 A.2d 239 (1987) (reversing trial court’s order because defendant’s post-divorce alcoholic condition was not substantial change affecting his earning capacity). As the plaintiff’s ability to earn remained largely the same since the dissolution judgment, the court properly found no substantial change in the plaintiff’s earning capacity.McKeon v. Lennon, 155 Conn.App. 423, 432-33, 109 A.3d 986, 993 (2015). In this case, the Court must consider the Defendant’s earning capacity or ability to make the income he was making in late 2017 in deciding if there was a substantial change in circumstance.
MOTION FOR CONTEMPT
The standard by which contempt is found is well established:
[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt ... This is a legal inquiry subject to de novo review ... Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was willful or excused by a good faith dispute or misunderstanding. (Internal quotation marks omitted.) Ciottone v. Ciottone, 154 Conn.App. 780, 788-89, 107 A.3d 1004 (2015).
Courts have in general the power to fashion a remedy appropriate to the vindication of a prior ... judgment ... Having found noncompliance, the court, in the exercise of its equitable powers, necessarily ha[s] the authority to fashion whatever orders [are] required to protect the integrity of [its original] judgment. (Internal quotation marks omitted.) Id., 794. This is so because [i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with the court order. (Emphasis in original; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn.App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010).Pressley v. Johnson, 173 Conn.App. 402, 408, 162 A.3d 751, 755-56 (2017). In Pressley v. Johnson, supra, the Appellate Court found that the reasonableness of a child care contribution is not measured by what the noncustodial parent claims he can afford to pay for a child care contribution, rather the reasonableness of the child care contribution is essentially established in the percentage assigned to the noncustodial parent when the judgment was entered. When the Superior Court failed to fashion an order against a child care contribution arrearage on the theory that the child care contribution was excessive for the noncustodial parent to pay, the Appellate Court found: "In not finding and requiring the defendant to pay an arrearage for his share of child care costs that the plaintiff had incurred, the court effectively found that the defendant had no obligation to pay one-half of child care expenses for the parties’ children, contrary to the plain language of the dissolution judgment." Pressley v. Johnson, 173 Conn.App. 402, 409 (2017).
Applying the above well recognized legal principles and case precedent to the facts of this case the court concludes that the defendant has failed to satisfy his burden of proof that he has experienced a change in circumstances that would support modification of his court-ordered child support obligation. The defendant has failed to prove that he experienced reduced income for reasons other than his voluntary decision to relocate to a location over 1,000 miles from his former employer. Although the defendant suggested that the court should also find that he has a reduced earning capacity due to his current geographic location, he provided no credible evidence to support his claim. Furthermore, like the claim of reduced income, any finding of reduced earning capacity is defeated by the fact that the Defendant made the decision to move to Florida. The Motion for modification is denied.
At the time of the hearing, the Defendant’s income was not substantially different from the income which he received at the time the order was set in June 2017. Despite his change in employment status, the Defendant has adequate savings to pay the order until he either becomes employed again or earns income from his construction business. In addition, as noted above he has failed to demonstrate a reduced earning capacity that was not caused by his own actions. His child support order should not be reduced as a result of his voluntary career and lifestyle decisions. Under Connecticut law, the Plaintiff is entitled to receive child support and payment of any child support arrearage for the parties’ son within the presumptive guideline amount as ordered. The law does not permit a parent to focus financial resources on his new family at the expense of a child who is the subject of existing court orders.
At the time of the hearing, the Defendant was still receiving his full salary or its equivalent. The evidence regarding the actual reason for his termination was conflicting. It appears that his interest and activity beginning a construction business may have contributed to his separation from County TV and Appliance. He testified that his employer, County TV and Appliance fired him. He also testified that he was going to begin a new business building houses in Florida. The evidence included pay stubs which indicate that he received a bonus or severance that calculates to several additional weeks of pay and documents showing he was entitled to receive unemployment benefits. The weight of the credible evidence supports the finding Defendant’s decision was not involuntary but rather was due to the combined result of his inability to perform the job for his employer after moving to Florida and his intention to start his own business in Florida. He has the right to do both, but he cannot use these decisions as a basis to reduce or to refuse to pay his child support orders.
Whether the Defendant’s employment was terminated because he could not satisfactorily perform marketing functions for his Connecticut employer or due to his interest in pursuing construction business in Florida, he failed to meet his burden of proof that his unemployment was involuntary or due to circumstances beyond his control as the courts of this state have interpreted the applicable statutes.
The Defendant has the financial resources to pay his child support order while he seeks employment or while he starts his construction business. At the time of the divorce in 2014, he received over $400,000.00 from the Plaintiff, purchased and sold a home in Stamford, Connecticut, and then purchased a new home in Florida. He has over $55,000.00 in savings in the bank according to his financial affidavit. He also received over $23,000.00 in the months of January and February 2018 from his employer in total compensation including bonuses. The court finds that the Defendant has adequate cash resources to pay the current child support orders.
As noted above, the Defendant failed to demonstrate he has a reduced earning capacity. Earning capacity is "an amount which a person can realistically be expected to earn considering such things as his [or her] vocational skills, employability, age and health." (Internal quotation marks omitted.) Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007). There was no testimony that indicated that the Defendant has reduced vocational skills, employability or suffers from deteriorating health. He is fifty years old and has established himself with his new family in Florida having purchased a house and qualified for a mortgage. Nothing about his present circumstances suggests inability to earn income sufficient to meet his court-ordered obligations. Rather, the court finds that the Defendant presents as a savvy and capable businessman who is trying to maximize his earning potential.
The Plaintiff submitted child support guidelines which are calculated based on the Plaintiff’s reduced earnings as she testified at the hearing and the Defendant’s latest income records. These guidelines obligate the Defendant to pay 45% reimbursement for medical and daycare. She has requested that the Court deviate and grant her 50% reimbursement for medical and daycare expenses. However, she has not filed a motion to modify child support orders and therefore, the court is without authority to consider the Plaintiff’s request at this time.
The Plaintiff has sustained her burden of proof that the Defendant was aware of clear and unambiguous child support orders, had the ability to pay those orders, and willfully chose not to do so. His refusal to comply with court orders is willful and he is therefore in contempt.
CONCLUSION
The Court has the obligation to assure that a parent comply with court-ordered support. The Court finds the Defendant in contempt by the required clear and convincing standard of proof and hereby issues the following orders.
1. The Defendant shall pay the Plaintiff 27% of the unreimbursed child care expenses of $6,699.00 or $1,808.73 and 27% of the child’s medical and dental expenses within 10 days of this order.
2. The Court has reviewed the affidavit of attorneys fees and finds them to be reasonable. The Court orders the defendant to pay attorneys fees of $3,125.00 plus costs of filing and serving the motion for contempt within 21 days of this order.