Opinion
No. FST-FA00-0176333-S
April 15, 2009
MEMORANDUM OF DECISION
The matter comes before this court by way of a postjudgment Motion to Reopen (#221) dated May 9, 2005, the original judgment on the grounds that the defendant husband ("husband") herein fraudulently failed to disclose assets, in particular, a certain partner's retirement plan ("PRP") at Pricewaterhouse Coopers, LLC ("PwC") at which he is an audit partner. The marriage was dissolved in an uncontested proceeding on May 25, 2001, at which time a Separation Agreement ("Agreement") was filed with the court and incorporated in the decree. In the alternative, the plaintiff wife ("wife") seeks relief under the terms of the Agreement, alleging a breach of same. The court bifurcated the proceeding in order to decide the issue of whether the retirement plan in question was, in fact, marital property. After a lengthy hearing, the court found (a) that the PRP was not marital property, (b), that the husband had also failed to disclose a certain PwC Employee Frozen Retirement Plan ("Legacy Plan"), and (c) that in addition to his failure to disclosure the Legacy Plan, in which he was vested, the husband should also have disclosed the existence of the PRP, even if his interest in it was not vested.
The court filed its Memorandum of Decision dated June 9, 2008, and pursuant thereto continued the hearing to determine if the husband's failure to disclose these items was fraudulent, so as to warrant opening the judgment. This was referred to by the court as Phase II of the hearing, and it took place over the course of four days. During the course of the hearing, the court granted the wife's oral motion to amend her claim to include the husband's failure to also disclose the Legacy retirement plan and permitted her to follow up with a written pleading to conform to the oral motion. In addition, the wife alleges that under the terms of the Agreement, the parties agreed that the burden of proof to demonstrate that the husband "misrepresented or intentionally concealed a property interest" would be by a preponderance of evidence and not the clear and convincing standard. For reasons that will become apparent, the court did not have to reach that issue, since the wife has failed to meet her burden under either standard.
In addition to the foregoing, pursuant to a motion by the wife (#231) originally dated October 11, 2005, the court was asked to decide the heretofore unresolved issue of child support, given the substantial postjudgment changes in the lives of the parties and the fact that two of the three children have reached their majority. In addition, the wife seeks a share of any monies from the sale of MCS, the consulting arm of PwC, alleging that same resulted in a direct benefit to the husband. The court also heard from the parties regarding the issue of the maintenance of health insurance. This the court referred to as Phase III and took place over the course of nine days, including final argument.
During Phase II, the court heard from the husband regarding his knowledge of the salient aspects of his partnership, including income and retirement. He testified that he and his wife, a CPA and former Price Waterhouse employee from 1984 through 1991, frequently discussed these subjects. In particular, he told the court that although the general terms of the PRP were known to the partners, they were not committed to writing until 2002. In response to partner inquiries, a template allowing the employee to input data, including salary and longevity, was made available to the employees on their work computers on or about April 2000, which allowed them to project an estimate of the future benefit. The husband said that he did not access his computer at that time for that purpose.
Later, during the divorce proceedings, he discussed this potential benefit with his attorney, and they made an affirmative decision not to list the PRP on the financial affidavit, as it was not funded, vested, or accrued at that time. Still later, he testified that the PRP, along with other topics including the potential future sale of MCS, came up during a settlement conference at the office of the wife's attorney, Anthony Piazza, at which was also present the wife's expert, Mark Harrison, who had been hired to value the husband's benefits. The husband has consistently maintained this position throughout the proceedings, and, the court concluded, that this position was accepted by the wife and those representing her. The husband's counsel, Christopher Burdett, confirmed his client's account. The wife's attorney did not deny that the meeting took place, but denied that the subject of the PRP came up at that time. Mark Harrison did not deny that he was present at the meeting, however, told the court that at that time he was aware that PwC had a PRP, but he could not say for sure today, now eight years later, what the source of his knowledge was, since he had also been hired as an expert by another PwC spouse at the same time. In her testimony, the wife testified consistently that she had no knowledge of the PRP up to that point. The husband and his counsel continued to take the position that the PRP was not an asset, and therefore they elected not to even note it on the husband's financial affidavit. In its initial Memorandum of Decision, the court pointed out that this course could prove problematic.
The next disputed incident took place during final negotiations at the courthouse on May 25, 2001, the day set for trial. Present were the wife, Attorney Piazza, his associate Laura Simmons, and Mark Harrison. The husband was there along with Attorney Burdett, as well as a co-worker Mr. Artabane. The parties and witnesses all agree that the negotiations took place all day at the courthouse, culminating in an Agreement and a hearing before Judge Harrigan late in the afternoon, at which time the court approved the Agreement and dissolved the marriage. It is also undisputed that some clauses were reworked and typed at Attorney Piazza's office that same day, and that some changes were simply inserted by hand and initialed. From that point on the stories diverge. The husband testified that the subject of the PRP came up during the day, in the absence of his attorney, during a discussion between himself, his wife, and her counsel, Attorney's Burdett and Simmons being at Piazza's office to have some changes to the Agreement typed. Again, the wife and her attorney dispute this claim. However, it is supported by Mr. Artabane who was present in court that day and was within earshot of that discussion. That witness testified that he joined that discussion to corroborate the position taken by the husband regarding the PRP. One specific change to the Agreement which the court found significant was the insertion of the word "vested" in Article XIII, ¶ 13.11 which provision called for penalties in the event of a party's failure to disclose a vested asset.
On balance, the court believes that the husband's version of events is more credible. The court found both parties to be intelligent and articulate, and the fact that both are CPA's, and familiar with numbers and complex financial matters, lends further credence to the husband's argument. Furthermore, the court does not believe that the subject of the PRP did not come up between husband and wife at any time during their marriage, in particular, within the context of the salient aspects of the husband's partnership, including retirement benefits, or in the lengthy merger negotiations with Coopers Lybrand, and, in particular, regarding the preservation of existing and potential partner benefits, like the PRP. Certainly, the aspirational expectations of both spouses were shared from time to time during the marriage, if only in the form of "pillow talk." In point of fact, the wife herself told the court that during their marriage, she and her husband discussed four broad work-related subjects, to wit: "1) office politics, 2) benefits, 3) finances and compensation, and 4) partnership." The court believes that the testimony and evidence supports a finding that the wife knew about the PRP at the time of the dissolution of marriage in 2001, and that she now wishes to change the bargain she reached with the advice of counsel and her expert.
During Phase III of the hearing the court heard from both parties as to the changes in their respective situations since the date of the dissolution. Both of them have since remarried, the wife in September 2005, and the husband in October 2007. Both parties remain employed, and both of their spouses are employed as well. The wife's current spouse testified that he loaned the wife a cumulative total of approximately $45,000.00, however, other than her husband's modest contribution to the family finances, neither new spouse's financial situation is a significant factor in the court's decision. The wife's income has increased dramatically since the date of the dissolution. The parties have asked the court to set a new level of child support, retroactive to September 2005, taking into account the fact that two of the three children of the parties have reached her majority, leaving one, Grace, aged 16, who resides primarily with the wife. It is clear from all the testimony and evidence that the combined joint net income of the parties from and including the date of the decree to date is well in excess of the maximum net weekly income in the Child Support Guidelines. After the wife's remarriage and the termination of her right to receive alimony, the husband began to pay and continues to pay the sum of $5,000.00 per month as and for child support.
The wife also claims that the husband in has failed to maintain health insurance for the children in conformity with the Agreement, which was made part of the court order. The court heard the testimony of the parties and considered the evidence, however, it does not find sufficient evidence of any breach. In fact, the evidence supports a finding that the husband is compliant.
Finally, the court heard testimony and took evidence of the wife's claim that she is entitled to a share of any distribution to the husband from the sale of PwC's consulting division, MCS, to IBM in October 2002. The wife filed a Motion for Contempt (#291) dated February 19, 2008, alleging the husband wilfully failed to comply with the terms of the decree. The husband has asked for attorneys fees regarding the wife's motion, arguing that it was frivolous. The court asked the husband to submit an affidavit of attorneys fees. The testimony and evidence is clear, that while the husband was given a series of Form K-1s, ostensibly assigning a share to him as a partner, he received no direct benefit from the sale. In fact, the evidence is clear that the managing partners applied any such funds derived from the sale to the retirement arrangement of then retired partners, and that he was not vested in that arrangement at that time.
FINDINGS AS TO PHASE II:
The court, having heard the testimony of the parties and their witnesses, and having considered the evidence, finds as follows:
1. That the marriage of the parties was dissolved by decree of this court on May 25, 2001.
2. That the Agreement by and between the parties dated May 25, 2001, was approved by the court and incorporated in its decree.
3. That both parties had the benefit of the advice of independent legal counsel throughout the case.
Article V, ¶ 5.1: "The parties hereto declare and acknowledge that each has had the opportunity to consult independent legal advice of his or her own selection."
4. That Article XIII, ¶ 13.10 of the Agreement provides that in the event of a breach of the Agreement, the offending party shall be liable for the reasonable attorneys fees, court costs, and expenses incurred to enforce the Agreement.
Article XIII, ¶ 13.10: "In the event that it shall be determined by a court of competent jurisdiction that either party shall have breached any of the provisions of this Agreement regardless of a finding of contempt by the court, or of any court decree incorporating by reference or otherwise this Agreement or portions hereof, the offending party shall pay to the other party reasonable attorneys fees, court costs and other expenses incurred in the enforcement of the provisions of this Agreement and/or judgment or decree incorporating any or all of the provisions hereof, subject to the determination of a court of competent jurisdiction."
5. That Article XIII, § 13.11 of the Agreement provides that in the event of a nondisclosure of a vested asset on the financial affidavit, the parties shall divide same equally, however, in the event that such property interest was misrepresented or intentionally concealed, which proof may be by a preponderance of evidence, then the non-offending party shall be entitled to the entire property.
Article XIII, § 13.11: "If there is any property interest (such as a vested retirement plan, bank account, personal account receivable, stock) effect thereof (such as interest, dividends, or a lump sum payment that actually can only be paid in installments) then that property interest or the effect thereof which is not disclosed on the financial affidavits filed at the time of trial shall be equally divided between the parties. If it is established by a preponderance of the evidence that a party misrepresented or intentionally concealed a property interest, the effect thereof or an important characteristic thereof, the interest of the concealing party will be transferred in full to the nonconcealing party and the concealing party will pay all costs, fees, expenses, attorneys fees, and damages of the nonconcealing party caused by said concealment."
6. That the PRP is not property, for reasons set forth in the Memorandum of Decision dated June 9, 2008, as on file June 10, 2008; that as such, it does not fall within the ambit of Article XIII, § 13.11; that pursuant to General Statutes § 46b — 66 a court must find a separation agreement to be fair and equitable under all the circumstances; that, among other things, a court bases its consideration of fairness upon the financial affidavits of the parties; that the better practice would be to call the court's attention to an item of potential financial significance by way of a footnote on said affidavit; that under all the facts and circumstances the husband's failure to list same on his financial affidavit was not fraudulent, and in any event, would not likely have changed the outcome of the court's finding of fairness.
7. That the testimony and evidence supports a finding that, while the husband did not disclose the existence of the PRP on his financial affidavit, at least as late as the final negotiations that took place at the courthouse on May 25, 2001, the wife and her counsel knew about the PRP; that the husband did disclose same in the context of negotiations leading up to the execution of a written Agreement, as evidenced in part by the written amendments to said Agreement, and that fact is amply supported by the testimony of the husband and his witnesses.
8. That the Price Waterhouse Legacy Plan is property falling within the ambit of Article XIII, §§ 13.10 and 13.11.
9. That the husband's failure to disclose same to the wife was an oversight and not wilfull; and that there being no credible evidence of fraud or of a mutual mistake, the Motion to Reopen the Judgment should therefore be denied.
10. That the evidence supports a finding that the husband has breached the contract by and between the parties, in that he failed to disclose an asset in existence at the time of the decree dissolving the marriage, to wit: the PwC Employee Frozen Retirement Plan ("Legacy"); that the husband's failure to disclose and to distribute same as of May 25, 2001, amounted to a wrongful detention of same; that the wife is entitled to one-half the value of same as of May 25, 2001; that the value of same as of that date was $23,000.00; that the wife is entitled to the sum of $11,500.00 therefrom; that said asset should be divided by means of a Qualified Domestic Relations Order prepared at the expense of the husband; and that the wife is entitled to simple, statutory interest in the amount of 10% per annum on said balance from the date of judgment until payment in full pursuant to General Statutes § 37-3a.
11. That the husband having been in breach of the terms of the Agreement of the parties, the wife is entitled to reasonable attorneys fees and costs associated with the recovery of same; that the wife has submitted an affidavit of attorneys fees incurred in connection therewith in the amount of $207,463.91; and that, under all the circumstances, including the amount of the recovery relative to the overall litigation, the court finds that it is equitable and appropriate to award her the sum of $15,000.00 as and for her legal fees and costs.
12. That Article IV, ¶ 4.4 of the Agreement provides that if the husband receives any funds from the sale of any division of PwC within five years from the date of the decree, the wife shall be entitled to receive thirty-three and one-third percent (33 1/3%) of any such distribution to the husband net of taxes calculated at 46%; and that said article specifically excludes any proceeds from such a sale used to fund any "existing pension/retirement plans or arrangements for which the Defendant is not vested on the date of dissolution."
Article IV, ¶ 4.4: "As an additional property distribution, the wife shall receive thirty-three and one-third (33 1/3 %) percent of any and all funds the Husband receives from the sale of any division of Price Waterhouse Coopers or its successors, provided that the sale or transfer occurs within sixty (60) months from the date of dissolution regardless of whether the Husband actually receives his proportionate share within sixty (60) months from the date of dissolution. In the event the Husband receives his proportionate share from, as a result of or in connection with the sale in any form other than cash, the parties agree that the Wife shall receive a distribution equal to thirty-three and one-third (33 1/3%) percent of the direct benefit derived therefrom or assets distributed to the Husband net of taxes at 46%, within fifteen (15) days of the Husband receiving the same. This asset division expressly excludes funding using proceeds from any such sale, of existing pension/retirement plans or arrangements for which the Defendant is not vested on the date of dissolution and expressly excludes any Price Waterhouse Coopers firm-wide restructuring arrangements not within the Husband's control and which are not a direct benefit to the Husband. The court shall retain jurisdiction to enforce this provision as well as to determine, if the parties cannot agree, as to what the Wife is entitled to pursuant to this provision."
13. That on or about October 16, 2002, PwC sold an entity known as MCS to International Business Machines Corporation ("IBM"); that said sale was within sixty (60) months of the decree dated May 25, 2001; that, in any event, the allocation of the proceeds therefrom was outside of the control of the husband; that the husband did not receive a "direct benefit" therefrom; that the proceeds of said sale were specifically excluded from consideration under the terms of the Agreement, in that they were used by the firm management to fund an existing pension/retirement plan or arrangements in which the husband was not vested on the date of dissolution; and that the court therefore makes no finding of contempt.
14. The court has reviewed the Affidavit of Counsel Fees (#325) dated February 11, 2009, as filed by the husband, and finds the fees claimed in the amount of $2,700.00 to be reasonable under all of the circumstances, including the financial abilities of the respective parties; and that it is equitable and appropriate to award attorneys fees to the husband for defense of said motion for contempt, pursuant to General Statutes § 46b-87.
AS TO PHASE III:
The Court, having heard the testimony of the husband and the wife, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes §§ 46b-56, 46b-84, 46b-86, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations ("Guidelines"), hereby makes the following findings:
1 That there has been a substantial change of circumstances since the date of the last order, to wit:
a. The plaintiff wife remarried on August 27, 2005;
b. The child Patricia reached her majority on November 6, 2006; and
c. The child Margaret reached her majority on March 10, 2008.
2. That Article II, ¶ 2.9 of the Agreement provides that alimony shall terminate upon the death of either party, the remarriage of the wife, or her cohabitation.
Article II, ¶ 2.9: "The Husband's obligations to pay unallocated alimony and child support to the Wife shall terminate upon the death of either party, remarriage by the Wife, or cohabitation by the Wife pursuant to Connecticut General Statutes Section 46b-86b."
3. That Article II, ¶ 2.6 of the Agreement provides that upon the termination of alimony, the Superior Court shall make a determination of child support for any minor children.
Article II, ¶ 2.6: "In the event that the payments of unallocated support as set forth in paragraphs 2.1 though 2.3 above are terminated and there is a minor child who has not yet attained the age of eighteen (18) and graduated from high school then, the Superior Court shall set an appropriate child support amount."
4. That the parties have stipulated and agreed that the court may determine child support retroactive to September 1, 2005.
5. That according to the financial affidavits of the parties as on file with the court, the net monthly income of the wife from employment is $8,375.00, and the net monthly income of the husband from employment and other sources is $59,523.00.
6. That since September 1, 2005, the combined net weekly income of the parties has been in excess of the maximum Child Support Guidelines amount, to wit: $4,000.00 per week; that a) for the period September 1, 2005 through November 5, 2006, the presumptive minimum child support for three minor children was $684.00 per week; b) for the period November 6, 2006 through March 9, 2008, the presumptive minimum child support for two children was $636.00 per week; c) and for the period March 10, 2008 to date, the presumptive minimum child support for one child is $473.00 per week; and that the husband's share thereof (88%) is $416.00.
7. That, in addition to consideration of the applicable statutes and Guidelines as aforesaid, in arriving at an amount of child support in excess of the presumptive minimum based upon the net income of the parties, the court has considered the fact that the Guidelines recognize that as net income increases, child support becomes a smaller percentage thereof; that in applying the Guidelines to more than one minor child, the amount of support is not based on a strictly per capita calculation; and that there was no credible evidence offered regarding any unmet special needs of the minor children.
8. That under all the circumstances child support should be paid as follows:
For the period September 1, 2005 through November 30, 2006: $7,500.00 per month;
For the period December 1, 2006 through March 31, 2008: $6,500.00 per month; and
For the period commencing April 1, 2008: $5,000.00 per month.
9. That since the remarriage of the wife, the husband has voluntarily paid the sum of $5,000.00 per month as and for child support for a period of 42 months (through February 2009), for a total of $210,000.00; and that for the period covered by this order to date, he owed the sum of $271,500.00, leaving a balance due in the form of an arrearage in the amount of $61,500.00 through February 28, 2008.
10. That Article VI, ¶ 6.1 provides: "The parties shall maintain medical insurance at all times equivalent to the coverage currently in effect. For purposes of this Agreement, medical insurance is defined as complete coverage including dental, hospitalization, pharmaceutical and psychological benefits, for the minor children . . ."
11. That there is no credible evidence that the current coverage for the minor child maintained by the husband is not "equivalent" coverage within the meaning of Article VI of the Agreement; that the husband is in compliance with the orders of the court; and that, therefore, the husband should not be held in contempt.
LAW AS TO ALLEGATIONS OF FRAUD:
General Stautes § 52-212a provides that a judgment can be opened more than four months after it was rendered only if the party claiming fraud can establish that it was obtained by fraud or in the event of a mutual mistake. Terry v. Terry, 102 Conn.App. 215, 222 (2007); Jones v. Jones, 111 Conn.App. 724, 729 (2008). However, "[b]ecause of the important consideration of finality of judgments . . . a judgment should not be opened without a strong and compelling reason." Martin v. Martin, 99 Conn.App. 145, 156 (2007). In the present case, there is no claim of mutual mistake. Accordingly, the court's analysis is limited to the claim of fraud. The elements of fraud are "(1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to its detriment." Weinstein v. Weinstein, 275 Conn. 671, 685 (2005). In general, fraud must be proven by clear and convincing evidence. However, in the context of a matrimonial action, "there are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of a new trial will be different." Terry v. Terry, supra, 223. The wife has failed to meet her burden in that there was no clear proof of fraud, to the contrary, the court found sufficient evidence to support a finding that the existence of the PRP was disclosed to the wife and her counsel during the settlement negotiations and prior to the entry of the decree.
In a matrimonial action, financial affidavits play an important role, and there is a need for full and fair disclosure. Monroe v. Monroe, 177 Conn. 173, 182 (1979). Under all the facts and circumstances, there was insufficient evidence presented to the court to demonstrate that in the event of a new trial there was a likelihood of a different result.
AS TO THE CLAIM OF BREACH OF CONTRACT:
A separation agreement is a contract, and as such in the interpretation of its terms the court should apply rules of construction for contracts. Barnard v. Barnard, 214 Conn. 99, 109 (1990). Parties are free to bargain, and court should enforce the agreement, unless one or more of its provisions violate public policy or notions of fundamental fairness. "A court cannot change or vary the construction and legal effect of a contract because the terms are inconvenient or even unreasonable." Greenburg v. Greenburg, 26 Conn.App. 591, 598 (1992). "The elements of an action for breach of contract are, "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Rosato v. Mascardo, 82 Conn.App. 396, 411 (2004).
Even though the conduct of a party does not support a finding of contempt, the court may still award attorneys fees where there has been a breach. Nelson v. Nelson, 13 Conn.App. 355, 363 and 367 (1988); Sardilli v. Sardilli, 16 Conn.App. 114, 120 (1988). In particular, where the parties have agreed to the payment of reasonable attorneys fees and costs in the event of a default by one of them, then the court may order the payment of same without consideration of their respective financial abilities. In such a case, the court must first determine whether or not a breach has occurred, and if so, then make a determination of the "amount of reasonable attorneys fees to be awarded." Goold v. Goold, 11 Conn.App. 268, 288-89 (1987).
"The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. [Citation omitted.] These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute." Porter v. Porter, 61 Conn.App. 791, 797 (2001). "[A] property settlement constitutes a final resolution of a dispute, and as such, warrants the penalty of interest when satisfaction is not obtained." Niles v. Niles, 15 Conn.App. 718, 721 (1988). The decision to award postjudgment interest is within the sound discretion of the court, and if it is awarded, its accrual begins as of the date of judgment. Bower v. D'Onfro, 45 Conn.App. 543, 550-51 (1997). Pursuant to General Statutes § 37-3a, a court may award interest of up to 10% per annum on monies wrongfully detained, even in the absence of a finding of contempt. Wrongful conduct, which is "legally distinct" from wilful conduct, "simply means that the act is performed without the legal right to do so," and it is a question of fact. To award postjudgment interest pursuant to the above statute, the court must find that the money was "wrongfully detained" and "the date upon which wrongful detention began." Sosin v. Sosin, 109 Conn.App. 691, 704-07 (2008).
AS TO THE DETERMINATION OF CHILD SUPPORT:
"Inherent in an order of unallocated alimony and support is that some portion of the order is attributable to the payor's obligation to support the child." Matles v. Matles, 8 Conn.App. 76, 79 (1986). Under normal circumstances, an award of child support may be modified upon the demonstration of a substantial change of circumstances, unless the order itself clearly precludes modification. General Statutes § 46b-86(a); Borkowski v. Borkowski, 228 Conn. 729, 737 (1994); Spencer v. Spencer, 71 Conn.App. 475, 481 (2002); Schorsch v. Schorsch, 53 Conn.App. 378, 382 (1999). An award of child support may also be modified upon a showing that the order substantially deviates from the Child Support Guidelines. Substantial deviation is defined as a variance of 15% or more. General Statutes § 46b-86(a). In general, a child support order cannot be retroactively modified, except in limited circumstances set forth in General Statutes § 46b-86(a). However, absent an agreement of the parties, where an order requires the payment of child support beyond the age of majority, "it is of no force and effect as a court order." Kennedy v. Kennedy, 177 Conn. 47, 52 (1979). The only exceptions being awards governed by General Statutes § 46b-56c, and 46b-84(b) and (c). Thus, to the extent that a judgment provides for the payment of child support beyond the age of majority, outside of the exceptions noted above, a new order must be determined as of the date of majority of the child. Miller v. Miller, 181 Conn. 610, 614 (1980). Where the payor has overpaid his obligation, he or she is entitled to a credit for the difference between the actual payment and the effective order. Stein v. Stein, 49 Conn.App. 536, 540 (1998).
Alimony and child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001). In making an award of child support, the court must follow the Child Support Guidelines in order "to determine a presumptive child support payment, which is to be deviated from only under extraordinary circumstances." Golden v. Mandel, 110 Conn.App. 376, 386 (2008). Where the net income of the parties is in excess of the child support guidelines, the court may exercise its discretion in the award of child support, however, ". . . in any proceeding for the establishment or modification of a child support award, the Guidelines `shall be considered in addition to and not in lieu of the criteria established in General Statutes 46-84(b) . . . In addition, the Guidelines themselves list several factors that may be relevant to the determination of [the] support amount . . ." General Statutes § 46b-215b(b); Battersby v. Battersby, 218 Conn. 467, 471-72 (1991).
ORDER IT IS HEREBY ORDERED THAT:
1) The Motion to Repen the Judgment (#221) is HEREBY DENIED;
2) Within ninety (90) days from the date of this order, the husband shall, at his expense, prepare and file a Qualified Domestic Relations Order ("QDRO") transferring to the wife a share of the PwC Employee Frozen Retirement Plan ("Legacy") in the amount of $11,500.00, which sum represents damages for breach of the Agreement pursuant to Article XIII ¶ 13.11 thereof. In addition thereto. by means of a separate payment, within two (2) weeks from the date that said transfer by QDRO is complete, the husband shall make a lump sum payment to the wife by way of simple interest payable on the $11,500.00 at the rate of 10% per annum ($3.15 per diem) calculated from and including May 25, 2001 to and said sum until paid in full by way of the QDRO as set forth above, together with reasonable attorneys fees in the amount of $15,000.00, as a result of said breach;
3) The wife's Motion for Contempt (#291) is HEREBY DENIED; and the wife shall pay to the husband, within thirty (30) days from the date hereof, the sum of $2,700.00 as and for his reasonable attorneys fees incurred defending said motion pursuant to General Statutes § 46b-87;
4) The wife's Motion for Modification of Child Support (#231) dated October 11, 2005, is HEREBY GRANTED as follows: Commencing September 1, 2005 through November 30, 2006: $7,500.00 per month; thereafter, for the period December 1, 2006 through March 31, 2008: $6,500.00 per month; and thereafter, for the period commencing April 1, 2008 and monthly thereafter, the husband shall pay to the wife the sum of $5,000.00 as and for child support, until such time as the child shall reach the age of eighteen years or shall be otherwise emancipated. The foregoing notwithstanding, if the child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or her nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b). The foregoing notwithstanding, the husband shall be entitled to a credit of up to $5,000.00 per month for sums voluntarily paid for child support commencing September 1, 2005. Commencing May 1, 2009, the outstanding arrearage created by this order shall be paid at the rate of $4,000.00 per month until paid in full.