Opinion
HHDFA074028878S
06-27-2017
Betsy Scalora v. Jeffrey Scalora
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE #129 PLAINTIFF'S MOTION FOR CONTEMPT, POST JUDGMENT; #136 DEFENDANT'S SPECIAL DEFENSES; #138 DEFENDANT'S MOTION TO DISMISS; #143 DEFENDANT'S MOTION FOR CONTEMPT, POST JUDGMENT; AND #144 DEFENDANT'S MOTION FOR ORDER, POST JUDGMENT
Gerard I. Adelman, Judge.
This hearing on postjudgment motions was heard by the court over four days commencing on Monday, February 6, 2017, and concluding on Tuesday, May 9, 2017. Both parties were represented by competent counsel. At the start of the hearing, the defendant withdrew his motion to dismiss (Docket Entry #138) and elected to rely on his special defenses. In the long time period between the third and final day of the hearing, the defendant filed two more motions: a motion for contempt, postjudgment (Docket Entry #143) and a motion for order (Docket Entry #144). The plaintiff agreed that these two motions could be heard and decided as part of the overall hearing despite the late filing.
The basic facts are not in dispute. The parties' marriage was dissolved by the court on February 8, 2008, based on a separation agreement (Docket Entry #126.10) negotiated by the parties with the assistance of their respective counsel. Under the terms of said agreement, the defendant had an obligation to pay alimony to the plaintiff, which obligation terminated upon the plaintiff's remarriage on October 31, 2015. The defendant also had an obligation to pay child support and certain expenses incurred for the benefit of their two children as spelled out in said agreement. Finally, the defendant had an obligation to maintain life insurance for a period of time corresponding to the years in which he had a financial obligation to the plaintiff and/or the children.
The parties were the only witnesses to testify. There were three major issues: (1) the plaintiff's claim that the defendant has not paid the full alimony owed to her pursuant to the orders of the court; (2) that the defendant has refused to pay all appropriate expenses for the children of the marriage as spelled out in the separation agreement of the parties; and (3) that the defendant has failed to maintain the alleged required life insurance coverage. At the hearing, the plaintiff submitted numerous receipts and claims for reimbursement that covered the multiple years since the dissolution. These exhibits exceeded four hundred sixty (460) in number. The defendant also offered numerous exhibits which exceeded thirty (30) in number. It was the defendant's position that he had made certain payments for which the plaintiff has failed to properly account and that the plaintiff was barred from her claims due to the equitable doctrines of laches, equitable estoppel and waiver. In his latest motions, the defendant claimed an offset or credit for what he termed excess payments as well a motion seeking the court to hold the plaintiff in contempt for improperly claiming the children as dependents on certain tax return filings.
Considering the alimony claims first, it is undisputed that the defendant's obligation was to pay to the plaintiff the sum of $900 in periodic alimony per week as was specified in Article IV of the agreement. That amount automatically reduced to $625 per week when the defendant's child support obligation ended. The youngest child reached her majority on June 26, 2010. The plaintiff alleged that the defendant made the required payments until May 2010. It was her claim at trial that for the year 2010, the defendant owes her $17,860 in unpaid alimony. For the calendar years 2011, 2012, 2013, and 2014, she alleges each a full year of unpaid obligations totaling $32,500 ($625 x fifty-two (52) weeks) per year. In 2015, the plaintiff alleges unpaid alimony totaling $26,000 based on the weeks from January 1, 2015, to October 31, 2015. The total alimony claim was, therefore, $173,860. The defendant denies that amount and claims that the plaintiff elected to characterize many payments as other than alimony. She testified, for example, that she considered a payment as child support or reimbursement for another category even if the check indicated that it was alimony on the memo line.
At the end of the trial, the court requested that both parties file post-trial briefs outlining their view of the evidence presented to the court and to state their final proposed orders. In the plaintiff's brief (Docket Entry #147), she modified her demands for payment downward on a number of the individual items. Her claim for unpaid alimony was reduced to $168,112.18. The defendant in his brief (Docket Entry #148) acknowledged owing the plaintiff $80,041 in unpaid alimony. Based on the plaintiff's own testimony that she frequently disregarded the claimed nature of the payment, the court finds the defendant's calculation to be the more accurate one.
As will be seen in this Memorandum, the court has accepted some of the amended amounts when they were supported by the court's understanding of the evidence. Other admissions were not accepted. In their respective post-trial brief both sides tended to moderate their claims somewhat. As a pleading, the amended amounts are judicial admissions and may be used by the court. " [The] purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial . . . Accordingly, [t]he admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it . . . [The] admission in a pleading or answer is binding on the party making it, and may be viewed as a conclusive or judicial admission . . . It is axiomatic that the parties are bound by their pleadings. (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn.App. 470, 476-77, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008) (concluding that by admitting plaintiff was lessor, defendant dispensed with need for plaintiff to prove that fact because admission was conclusive). Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them . . . Admissions, whether judicial or evidentiary, are concessions of fact, not concessions of law. (Citations omitted; internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, 106 Conn.App. 266, 271, 941 A.2d 966 (2008)." (Internal quotation marks omitted.) Brye v. State, 147 Conn.App. 173, 177-78, 81 A.3d 1198 (2013).
It is well established, however, " that the evaluation of a witness' testimony and credibility are wholly within the province of the trier of fact . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) Emerick v. Emerick, 170 Conn.App. 368, 378-79, 154 A.3d 1069 (2017).
Regarding the claims of unpaid life insurance coverage, the defendant acknowledged that the policy he had at the time of the dissolution of the marriage lapsed in 2010, and that the plaintiff purchased a substitute policy at her expense. The premium paid by the plaintiff for that coverage in that year was $165.72. She continued to maintain the required coverage for the defendant at an annual premium cost of $662.88 in 2011, 2012, 2013, and 2014. Additionally, she alleged that she had to borrow against another insurance policy she had in order to raise the funds to pay the premium, and that loan produced $375 per year in interest payments made by her. The plaintiff made no claims regarding the life insurance for any other years. The total she claims that the defendant owes her for the life insurance is $5,817.24. This claim is not entirely clear as the defendant testified that he has maintained life insurance above the required amount throughout the post-judgment period. He offered no specifics, and he admits he allowed the plaintiff to purchase a policy on his life as well. It is not entirely clear from the testimony and evidence whether her policy supplemented his coverage or was a replacement. If it was a replacement policy, for how long was it necessary if the defendant also had life insurance coverage? Once again, in her post trial brief the defendant reduced her claim for this category to $2,817.24. Given some of the unanswered questions on this issue, that reduced amount is a fair claim.
Under the terms of the agreement, the defendant was to be solely liable for all expenses related to the post-secondary education of the two children. As set forth in Article 3.3 of the agreement, his obligation was not limited by the provisions of General Statutes § 46b-56c, but required him to pay for college " or any further learning and training beyond high school for each child, including tuition, board, books, fees, clothes and necessary transportation and travel costs." Accordingly, there is no limitation set by the child's age, no limitation as to an undergraduate degree only nor to the amount to be expended in any given year. The only stated restriction is the adjective " necessary, " as applied to travel costs. Accordingly, the plaintiff is claiming such post-majority educational support in the form of direct college expenses, i.e., tuition, board, fees and travel expenses for 2010, in the amount of $1,388.34; for 2011, in the amount of $11,376.63; for 2012, $14,933.60; for 2013, $16,410.64; and for 2014, $12,108.41.
The plaintiff is also claiming that she is owed reimbursement for hundreds of purchases for miscellaneous food and clothing purchases. The plaintiff interprets the agreement to require the defendant to cover any and all food items, including other items purchased at supermarkets such as cleaning products, and all clothing purchased for the children while at college or, in the case of their younger daughter, graduate school as well. The fact that the student is on a meal plan is not, in the opinion of the plaintiff, the end of the defendant's obligation. Rather, he is liable for all snacks, drinks, etc. that the student might consume while a student. The same rationale has been applied by the plaintiff to clothing. Any items of clothing purchased by her for the student is to be covered. A recent Appellate Court opinion sets forth the analysis used to construe the terms of a separation agreement. In Fazio v. Fazio, 162 Conn.App. 236, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016), the court stated: " It is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts . . . When constructing a contract, we seek to determine the intent of the parties from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract . . . Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument.
" If a contract is unambiguous within its four corners, the determination of what the parties intended by their contractual commitments is a question of law [and our review is plenary] . . . When the language of a contract is ambiguous, [however] the determination of the parties' intent to a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous.
" Accordingly, [t]he threshold determination in the construction of a separation agreement . . . is whether, examining the relevant provision in light of the context of the situation, the provision at issue is clear and unambiguous, which is a question of law over which our review is plenary . . . Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion . . . The proper inquiry focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation . . . It must be noted, however, that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . .
" In contract, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Citations omitted; internal quotation marks omitted.) Fazio v. Fazio, supra, 162 Conn.App. 243-45.
In the present case, the provision in the separation agreement that requires the father to pay all postsecondary educational expenses with virtually no limitations appears, at first blush, to be unambiguous. In the context of the situation contemplated in the present separation agreement, the child's need for food while away at school had been addressed by her participation in the school's meal plan and the father's required payment of the associated cost. The postsecondary educational expenses portion of the separation agreement, although seemingly unambiguous on its face, is actually ambiguous because it is susceptible to different interpretations with respect to the requirement that the father pay for the child's food where the child has a meal plan and the agreement does not specifically address the purchase of additional groceries by the mother. " If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) Faizo v. Faizo, supra, 162 Conn.App. 245. The agreement, therefore, is subject to interpretation to determine the intent of the parties, which " is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ." (Emphasis added; internal quotation marks omitted.) Id., 244.
As General Statutes § 46b-56c(f) indicates, postsecondary educational expenses may include " board, " usually in the form of meal plans, for which schools charge fees. Although parties may generally agree to exceed the amounts of expenditures set forth in § 46b-56c(f), no obligation on the part of the present father to pay for additional, and ostensibly unlimited, purchases of groceries for the child by the mother was likely contemplated or intended by the parties, or at least the father, when the separation agreement was reached. Unlimited grocery purchases, therefore, would not appear to be " fair and reasonable" expenses in these circumstances where the child already has a meal plan. Fazio v. Fazio, supra, 162 Conn.App. 243-44. Construing the language of the separation agreement in a " sensible" manner; id.; the father should not be required to reimburse the mother for each and every grocery purchase.
There may, however, be instances in which the child does not have access to a campus dining hall or other eateries and may, therefore, require funds with which to purchase groceries. Also, while traveling to and from school, the child may require money to pay for meals at restaurants or other establishments. Specifically in this family, the younger daughter was a member of the college soccer team and was not always able to go to the dining hall due to practice and game commitments. In these situations, it would appear that the father could reasonably be expected to pay for the child's food pursuant to the terms of the separation agreement.
The plaintiff's testimony was that their oldest daughter was not on a meal plan while at college and, therefore, spending money for groceries was appropriate. The court does not disagree, but some of the claimed reimbursements were excessive. If the parents are providing the child with groceries, for example, it is not a necessary food expense to provide her with Dunkin Donut gift cards so she can purchase a breakfast out. It may be a nice gift to the child, but it is hardly what would be anticipated in a grocery expense. In the same vein, the plaintiff put into evidence a number of receipts for shipping groceries and other items to the girls while at school. Such an expense is excessive and unnecessary because the groceries could be delivered to the student through one of the grocery delivery services available, or funds could be deposited into her account so she could shop for the needed groceries on her own.
In a similar fashion, the obligation to purchase clothing for the student must be interpreted in light of a fair and reasonable standard for the clothing needed. The use of the words " any" and " clothes" in paragraph 3.3 of Article III of the separation agreement, the postsecondary expenses section, without further explanatory language, could be considered to be ambiguous because it is susceptible of different meanings. For example, does the term " clothes" mean only clothing items normally associated with college living or does it also include formal wear to attend family weddings and other affairs while in college or graduate school? The use of the word " any" here, as it pertains to " clothes, " is so broad that it could apply to every conceivable item of clothing that the children might want, regardless of cost or need. The agreement, therefore, is subject to interpretation to determine the intent of the parties, which " is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." Fazio v. Fazio, supra, 162 Conn.App. 244.
Applying such a standard would not require the defendant to pay for every single piece of clothing and accessories purchased for the student, but rather to provide the child with a reasonable wardrobe for her educational needs. A careful review of the receipts offered into evidence and the testimony of the plaintiff herself show frequent purchases for a variety of types of clothing including optional accessories, which while most likely desired by the child, are hardly part of a fair and reasonable standard under the judgment. Based on this finding, the court issued an interim order on April 12, 2017 (Docket Entry #142) requesting that the parties offer evidence on what they believe to be a reasonable amount to spend on clothing for the two girls on a monthly or annual basis. The defendant testified that his review of the receipts indicate that the plaintiff spent for clothing only about $1600 in calendar year 2010, $2,980 in 2011, slightly over $8,000 in 2012, approximately $9,660 in 2013, and close to $4,160 in 2014. When asked specifically what amount the plaintiff thought was reasonable, she declined to offer an opinion and responded that she spent what she had to " meet the needs of my family."
The older daughter graduated college in 2011, and turned twenty-three (23) in 2012. She was married in November 2015. The younger daughter started college in 2010, and turned twenty-three (23) in 2015. She has graduated college in 2014, and is currently in graduate studies at Columbia University. The clothing amounts would be for both girls only for 2010, and part of 2011.
For the same years, the defendant testified that he provided the older daughter with funds for her own use, above and beyond college tuition, car expenses and other specific items in the following amounts: 2010-$11,530; 2011-$7,520; 2012-$5,275; 2013-$300; 2014-$500; and 2015-zero. He provided the younger daughter as follows: 2010-$14,755; 2011-$100; 2012-$2,920; 2013-$3,645; 2014-$2,220; and 2015-$5,100.
On Defendant's exhibit " N" the court subtracted the sum of $11,300 from the total payments of $26,055 based on the defendant's testimony that he would sometimes transfer to the daughter's account the $11,300 he owed to the plaintiff and the daughter would give those funds to her mother. According to his testimony, the remaining funds were for the daughter's use.
What are reasonable amounts for clothing and food for college students? No evidence was offered to the court other than what was spent by each parent and neither party asked the court to take judicial notice of what such an amount might be reasonable. " When faced with the constraints of incomplete information, a court cannot be faulted for fashioning an award as equitably as possible under the circumstances." Commissioner of Transportation v. Larobina, 92 Conn.App. 15, 32, 882 A.2d 1265, cert. denied, 276 Conn. 931, 889 A.2d 816 (2005).
To reach an equitable resolution of the conflict and in light of the lack of evidence as to what reasonable costs might be for food and clothing, the court will take judicial notice as to what such costs might be. With respect to the food expenses, the court may take judicial notice of the cost of a typical meal plan at the college in determining the amount of this claimed expense. See Morris v. Morris, Superior Court, judicial district of Fairfield, Docket No. FA-01-0384330-S, (May 30, 2006, Owens, J.T.R.) (" [t]his 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"). The children in the present case attended the University of Pennsylvania. An internet search of the college's website disclosed the cost of a typical meal plan. The costs of attending the University of Pennsylvania for the 2016-2017 academic year were broken down as follows: tuition and fees: $51,464; housing: $9,450; dining: $5,086; books: $1,280; personal expenses (which includes clothing): $2,060; total cost: $69,340. See University of Pennsylvania, Student Registration and Financial Services, " Paying for a Penn Education, Undergraduate Cost of Attendance, Academic Year 2016-2017, " p. 1, available at http://www.sfs.upenn.edu/paying/cost-of-attendance16-17.htm . (last visited June 22, 2017).
" [Connecticut Code of Evidence § 2-1(c)] provides that a court may take judicial notice of facts that are not subject to reasonable dispute in that [they are] either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration." (Internal quotation marks omitted.) In re Jah'za G., 141 Conn.App. 15, 24, 60 A.3d 392, cert. denied, 308 Conn. 926, 64 A.3d 329 (2013). " Judicial notice . . . meets the objective of establishing facts to which the offer of evidence would be normally directed . . . Judicial notice relieves a party only of having to offer proof on the matter; it does not constitute conclusive proof of the matter nor is the opposing party prevented from offering evidence disputing the matter established by judicial notice." (Internal quotation marks omitted.) Id., 22. " A trial court's determination as to whether to take judicial notice is essentially an evidentiary ruling, subject to an abuse of discretion standard of review . . . Trial courts have broad discretion in determining the relevancy and admissibility of evidence . . . In order to establish reversible error, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse . . . Notice to the parties is not always required when a court takes judicial notice. Our own cases have attempted to draw a line between matters susceptible of explanation or contradiction, of which notice should not be taken without giving the affected party an opportunity to be heard . . . and matters of established fact, the accuracy of which cannot be questioned, such as court files, which may be judicially noticed without affording a hearing." (Citation omitted; internal quotation marks omitted.) Simes v. Simes, 95 Conn.App. 39, 51, 895 A.2d 852 (2006). " Connecticut Code of Evidence § 2-2(b) provides: 'The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned.'" Id., 51 n.14.
There may, as indicated above, have been instances in which the children did not have access to a campus dining hall or other eateries and may have required additional funds with which to purchase food. Additionally, while traveling to and from school, the children may have required additional money to pay for meals at restaurants or other establishments. In these situations, it would appear that the father could reasonably be expected to pay for the child's food pursuant to the terms of the separation agreement. It appears, therefore, that the husband's liability for food expenses should be limited to the cost of the typical meal plan plus other food expenses incurred when the children did not have access to the campus dining facilities and expenses that arose while traveling to and from school. It should be noted that each semester at the University of Pennsylvania runs for approximately eighteen weeks, including fall and spring break periods. See University of Pennsylvania Almanac, " Three-Year Academic Calendar, 2017-2018 through 2019-2020, " p. 1, available at http://www.upenn.edu/almanac/3yearcal.html . (last visited June 22, 2017).
Accordingly, the court makes the following assumptions: for a student on the meal plan at college, the sum of $75 weekly as a supplement is reasonable; for a student not on the meal plan that amount should be $200 per week; a clothing allowance of $200 per month is considered more than adequate by the court (not including specific sports equipment and/or uniform expenses).
Estimating an average cost of breakfast at $6, lunch at $10 and dinner at $13 seven day per week.
The older child was in college all of 2010, and half of 2011, while the younger child was in college (or graduate school) from the fall of 2010, through 2015. The older daughter did not have a food plan at college, so her estimated food expense would be for approximately thirty weeks in 2010, (assuming not at college for twelve weeks due to summer vacation and academic breaks) and fifteen weeks for 2011. That would total forty-five weeks at $200 per week, or $9,000. $6,000 for 2010, and $3,000 for 2011.
She is currently in graduate school but no claims for any expenses beyond 2015 are before the court.
As for the younger daughter, it would follow that her food allowance above and beyond the meal plan provided would be approximately $1,350 a semester, considering the $75 weekly allowance for the eighteen-week semester schedule, plus perhaps another $600 to cover food between semesters when school was not in session and when the daughter remained at college for athletic reasons. That would total approximately $2,790 a semester for food and clothing, or $5,580 each year. For calendar year 2010, the defendant would have overpaid and owes nothing, but for 2011, he would owe $5,480; for 2012, $2,660; for 2013, $1,935; for 2014, $3,360; and for 2015, $480. The total of those amounts equals $13,915. For the older daughter, his transfer of funds to her more than covered her food and clothing expenses for 2010, and for 2011. Therefore, none of the plaintiff's claimed expenditures for food and general clothing for the older daughter would be reimbursable.
The defendant has argued that he should receive a credit for any overpayments that he might have made. Such payments were gratuitous on his part based on his testimony that when the girls asked for something, he paid for it. Such freely given gifts to his daughters should not entitle him to a credit against items paid for by the plaintiff.
Another provision of the agreement that is before the court is Article 3.2, which states in relevant part that the defendant " shall be responsible for all activity costs for both of the parties' children . . . until each child reaches the age of twenty-three (23) years." The plaintiff argues that under this provision, the defendant is liable for all such costs which revolve primarily around the younger daughter's soccer. This provision is not ambiguous as the adjective " all" can be interpreted only one way. Accordingly, all activity-related expenses paid for by the plaintiff that exceed what the defendant provided directly to the children would be reimbursable to the plaintiff. The court's calculation of sport-or activity-related expenses after a review of all the exhibits totals $4,676.60, and the plaintiff's estimate was $5,000.
The older daughter was covered by this provision as well, but most of her expenses were covered prior to the current dispute over payment and she has since exceeded the age restriction.
In post-trial briefs, however, the plaintiff did offer her opinion as to what such reasonable expenses should be considered by the court. She recommended that a reasonable clothing expense for each daughter would be $1,500 per year, that each have an activity and transportation allowance of $500 per year, a food allowance of $1,000 yearly and an auto allowance of $50. Using her recommended reasonable costs, the defendant would be liable for $5,500 in 2010, 2011, and 2012, and for $5,250 in 2013, and 2014. No such expenses were offered for 2015.
In addition to the question of what expenses should be covered, the defendant has raised other issues regarding the plaintiff's claims. He has pleaded three special defenses to the plaintiff's motion for contempt: laches, equitable estoppel and waiver. He bases his argument on the fact that he stopped making payments in the middle of 2010, but the plaintiff took no action to enforce the agreement until the second half of 2015. The plaintiff points once again to the agreement negotiated by parties to support her position. Article XV of the agreement states in part: " No failure to assert any right, or to enforce any provision of this Agreement shall operate as a waiver of such right or provision, and either party shall be fully privileged to assert or enforce such right or provision at any later time." Based on this provision, the plaintiff argued that the defendant negotiated away his equitable defenses of laches, equitable estoppel and waiver.
Plaintiff's contempt motion (Docket Entry #129) was filed with the court on September 25, 2015.
Additionally, it is questionable whether such special defenses would apply to this case even without the language cited above. Each of these special defenses are equitable in nature and our case law has developed application tests for each. Starting with laches, the Supreme Court decision in Papcun v. Papcun, 181 Conn. 618, 620, 436 A.2d 282 (1980), defines that term. " Laches consists of two elements. First, there must be a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Internal quotation marks omitted.) Id. Accordingly, the defendant must prove that the plaintiff's delay in filing her motion constitutes an " inexcusable delay, " and that the defendant must have been prejudiced by such a delay. In other words, " [t]he mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . ." (Internal quotation marks omitted.) Kasowitz v. Kasowitz, 140 Conn.App. 507, 513, 59 A.3d 347 (2013). Furthermore, " [t]he burden of proof is on the party alleging laches to establish that defense." Coscina v. Coscina, 24 Conn.App. 190, 194, 587 A.2d 159 (1991).
The defendant argues in his Memorandum of Law In Support of Defendant's Special Defenses (Docket Entry #136) that the plaintiff's motion was filed and scheduled for a hearing shortly before the plaintiff's remarriage, which terminated the alimony obligation, and several months after the older child turned twenty-three (23) years of age. He also argues that he testified that although he did stop making the ordered payments, he continued to make substantial payments to and for the benefit of his children. Those payments included paying for the older daughter's wedding a year before plaintiff's motion was filed. That wedding cost, which he testified was approximately $72,000, was paid by him because he was relying on not paying the other expenses; had the plaintiff taken timely action, he argues, he would have been more prudent in what was spent on the wedding.
It is not uncommon for parties to delay filing contempt motions relating to payment of support and other financial issues when parenting issues are at play. E.g., Kasowitz v. Kasowitz, supra, 140 Conn.App. 513-14 (finding that filing motion for contempt more than four years after the defendant stopped paying child support was excusable, and therefore not barred by laches, when plaintiff was busy with responsibilities of caring for parties' children); Zipkin v. Zipkin, Superior Court, judicial district of Hartford, Docket No. FA-99-0721406-S, (March 16, 2009, Abery-Westone, J.) (finding that nothing in record indicated that plaintiff mother's six-to eight-year delay in filing motion for contempt was neither unreasonable or prejudicial). If the parties are cooperating and acting in a reasonably positive manner, there is a great hesitancy on the part of some parents to inject controversy over money issues. See generally J. Pedro-Carroll, Putting Children First: Proven Parenting Strategies for Helping Children Thrive Through Divorce (Penguin Group 2010). Compromises and settlements are based on many considerations and factors, one of which may frequently be a desire to keep things calm for the benefit of the child. Id.
The defendant additionally claims that the plaintiff waived her right to file the motion for contempt, and that such a waiver may be inferred from her behavior in delaying payment through a motion for contempt. " Waiver is the intentional relinquishment of a known right . . . Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so . . . The party asserting waiver, however, must present evidence such that the court can infer waiver from the circumstances." (Citation omitted; internal quotation marks omitted.) Carpender v. Sigel, 142 Conn.App. 379, 388, 67 A.3d 1011 (2013). " Silence may constitute waiver only where there is a duty to speak or otherwise take action . . . Temporary forbearance does not constitute waiver, and mere delay does not support a waiver." (Internal quotation marks omitted.) Id. The defendant has not presented evidence that the court can infer waiver from the circumstances, and the court's reasoning as stated above relative to laches applies equally to this claim.
The defendant's final claim is based on the concept of equitable estoppel. Culver v. Culver, 127 Conn.App. 236, 239, 17 A.3d 1048, cert. denied, 301 Conn. 929, 23 A.3d 724 (2011), presents the court with a very similar set of circumstances to the present matter, except that the behavior on the part of the moving party was far more egregious than anything alleged to have been done by the plaintiff here. In that case, the parties entered into a written agreement changing the support from $2,500 to $3,500. Id. The parties then modified the agreement again orally, in which the defendant would pay school tuition in lieu of support. Id. Both modifications to the agreement were done informally between the parties and were never witnessed nor acknowledged. Additionally, the oral modification was not presented to the court for approval under General Statues § 46b-66, despite a provision in their stipulation that was incorporated into the dissolution judgment requiring such agreements to be " executed with the same formality as [the stipulation]." (Emphasis in original.) Id. Additionally, the defendant in that case has expended a considerable amount of money on the tuition, which he believed was paid in lieu of the support order.
General Statutes § 46b-66(a) provides: " In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d."
The Appellate Court made short work of the equitable defenses. " Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby [the party] is absolutely precluded, both at law and in equity, from asserting rights . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . .
" We [have] recognized that estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." (Citation omitted; internal quotation marks omitted.) Culver v. Culver, supra, 127 Conn.App. 244.
It is the opinion of the court that even without the provisions of Article XV of the agreement, the defendant's special defenses would not prevail to excuse him of his obligations under the Judgment.
The defendant's testimony was that all he wants is a fair and reasonable balancing of the obligations. It is not disputed that for the first two years of the Judgment he paid all of his obligations without question. The plaintiff, according to the defendant, did not even have to provide him with bills and documentation for payment or reimbursement, he would just pay whatever she indicated she was owed and never questioned her. It was his great desire to protect the two daughters from any negative impact stemming from the divorce. He testified that he was greatly embarrassed by his actions which resulted in the dissolution action and for the first two years paid all things demanded; acting out of guilt and embarrassment rather than a logical application of the provisions of the Judgment. However, when his income was reduced for a variety of reasons, and he paid less than what was due, he believes he should get some form of credit for his overpayments in earlier years.
Additionally, it was his undisputed testimony that he provided both of his daughters with funds directly to their own accounts on a regular basis throughout the years in question. He testified that those funds were to cover the girls' expenses for whatever they needed while at college or for their athletic activities. The testimony was that each girls' account was funded at a level of one hundred dollars at all times and, when there was a specific request for a larger amount to cover a specific cost, those extra funds were transferred to their accounts. Accordingly, there was no need for the plaintiff to be constantly purchasing clothing and food items for the girls because he was providing them with adequate funds for those items. Things that the plaintiff purchased for the daughters were done on the plaintiff's own accord and do not require reimbursement by the defendant under the terms of the Judgment. This final argument has some merit. By their respective testimony, it is clear that neither parent communicated very well with the other, especially from May 2010 on.
The defendant's motion for contempt (Docket Entry #143) alleges that the plaintiff failed to allow the defendant to claim the children as exemptions on his income tax returns for the odd years 2009, 2011, and 2013, as called for in the Judgment. The plaintiff admits that she took the exemptions in those years, but claims that she did so with the permission of the defendant. The defendant denies that claim. There is no documentation to support the plaintiff's claim, and the order of the court remains unchanged. In his post-trial brief, however, the defendant claims that the plaintiff's behavior resulted in his loss of $3,650 in 2009, $3,700 in 2011, and $3,900 in 2013, for a total loss of $11,250. Those amounts, however, are the amounts that one could claim to reduce one's taxable income for each of those years and not the amount of extra tax one might have to pay due to the inability to claim the exemptions. The amount lost--or the extra tax paid--would be a product of the individual's effective tax rate for those years. Because the defendant did not offer his tax returns into evidence for those years, it is not possible for the court to calculate the actual loss to him resulting from the plaintiff's actions. An estimated loss based on an effective tax rate of 25 percent would be a total of $2,812.50 in reduced tax paid for the three years in question.
In 2009, an individual filing single would have such an effective tax rate with taxable income starting at $33,951 and in 2011, that amount would be $34,501. The court does not have that amount for the 2013 tax year, but it would likely be around $35,000. These figures are based on the " Calculation of Effective Federal Tax Rate in Percentages of Taxable Income" prepared by the Law Offices of Schiller, DuCanto & Fleck, LLP.
The defendant has also filed a motion for setoff and credit (Docket Entry #144). In that motion he seeks that the court either set off or credit him for certain payments against any money owed to the plaintiff. He is claiming this setoff or credit for the income tax exemptions, for claimed overpayments for the years 2008, and 2009, and for one-half of the cost of his older daughter's wedding.
There is no dispute that the defendant did pay to the plaintiff or for the benefit of his two children funds in excess of those items required under the terms of the Judgment. His testimony was that at that time he was terribly embarrassed and guilty over the failure of his marriage and the impact that might have on his children. As a consequence, he paid every and any bill that was given to him with little if any regard as to the nature of that expense. A payment that is not required by law is characterized as a gift. By his own testimony, the defendant paid the money without question or expectation of anything in return. He wanted his children to be unaffected by the dissolution of the marriage and acted accordingly. " A gift is the transfer of property without consideration . . . To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee . . . In other words, a valid inter vivos gift of personal property requires both delivery of possession of the property to the donee and an intent on the part of the donor that title shall pass immediately to the donee." (Internal quotation marks omitted.) Wasniewski v. Quick & Reilly, Inc., 292 Conn. 98, 103-04, 971 A.2d 8 (2009).
The defendant's claim for reimbursement of the cost of their daughter's wedding is not a persuasive claim. The parties testified in complete contradiction of one another as to whether or not there was any agreement to share the cost. Although the plaintiff's testimony was not always credible in some areas, in this one it appears to be more credible than that of the defendant. Given her lack of any substantial independent income, it does not seem very plausible that she would have agreed to share the cost of the wedding and, given the fact that is no documentation either way, the court will not see the defendant's claim as a valid one for reimbursement.
As both parties have filed contempt motions against the other, it is appropriate to discuss the proof necessary for a finding of contempt. " [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful . . . [A] contempt finding is not automatic and depends on the facts and circumstances underlying it." (Citations omitted; internal quotation marks omitted.) Dickinson v. Dickinson, 143 Conn.App. 184, 188-89, 68 A.3d 182 (2013), overruled on other grounds by Brody v. Brody, 315 Conn. 300, 318-19, 105 A.3d 887 (2014). " [I]t is well settled that the inability of [a] defendant to obey an order of the court, without fault on his part, is a good defense to the charge of contempt . . . The contemnor must establish that he cannot comply, or was unable to do so . . . It is [then] within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure." (Citation omitted; internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 398, 985 A.2d 319 (2009). " Whether [a party] establishe[s] [an] inability to pay [an] order by credible evidence is a question of fact." (Citations omitted; internal quotation marks omitted.) Mekrut v. Suits, 147 Conn.App. 794, 800, 84 A.3d 466 (2014). Civil contempt proceedings such as those presently before this court must be proven by " clear and convincing evidence." Brody v. Brody, supra, 318-19.
As to the failure of the defendant to pay the required alimony and to maintain the required life insurance, the plaintiff has met her burden of proof for a finding of contempt. As to the failure of the plaintiff to allow the defendant to take the dependency exemptions in the odd years of 2009, 2011, and 2013, the defendant has met his burden of proof. As to the reimbursement of other items, it has not been established by that burden that the defendant failed to meet his obligations.
Having carefully reviewed the testimony of the parties including their demeanor while on the stand, the numerous exhibits offered to the court and the admissions made by each party in their final pleadings--their post-trial briefs--in light of the criteria as set forth in our statutes and explained by our case law, the court makes the following findings of fact:
A. The defendant has not paid to the plaintiff all of the alimony payments required by the judgment and he owes the plaintiff $80,042 in unpaid alimony;
B. The defendant owes the plaintiff the sum of $2,817.24 as reimbursement for life insurance costs he failed to pay per the judgment;
C. The defendant owes the plaintiff the sum of $2929 as reimbursement for medical expenses;
D. The defendant owes the plaintiff the sum of $13,915 as reimbursement for food and clothing expenses covered by the judgment for the younger daughter; he owes nothing as reimbursement for said expenses of the older daughter;
E. The defendant owes the plaintiff the sum of $4,676.60 for sports-related activities;
F. The plaintiff owes the defendant the sum of $2,812.50 as reimbursement for taxes he had to pay in the years the defendant inappropriately claimed the dependency exemptions; and
G. The defendant has an ongoing obligation to fund his younger daughter's graduate education and to pay the existing student loans.
In light of the factual findings above, the court enters the following ORDERS:
I. The plaintiff's motion for contempt (Docket Entry #129) is granted in part as follows:
A. The defendant is found to be in contempt of the order to pay alimony and he owes the plaintiff the sum of $80,042 in unpaid alimony;
B. The defendant is found to be in contempt of the order to maintain life insurance as set forth in the judgment and he owes the plaintiff the sum of $2,817.24 as reimbursement for funds spent to maintain said insurance coverage;
II. The plaintiff's motion for contempt postjudgment (Docket Entry #129) is denied in part as follows:
A. The defendant is not in contempt, but owes the plaintiff the sum of $2,929 as reimbursement for medical expenses;
B. The defendant is not in contempt, but owes the plaintiff the sum of $13,915 as reimbursement for food and clothing expenses covered by the judgment for the younger daughter; he owes nothing as reimbursement for said expenses of the older daughter;
C. The defendant owes the plaintiff the sum of $4,676.60 for sports-related activities;
III. The defendant's special defenses (Docket Entry #135) are denied;
IV. The defendant's motion to dismiss postjudgment (Docket Entry #138) was withdrawn prior to the trial;
V. The defendant's motion for contempt postjudgment (Docket Entry #143) is granted in part as to the tax dependency exemptions only and the plaintiff owes to the defendant the sum of $2815.50; it is denied as to the two other claims;
VI. The defendant's motion for order postjudgment (Docket Entry #144) is granted in part so as to allow the defendant may take as a set off from the funds he owes to the plaintiff the money she owes to him;
VII. The defendant's total obligation to the plaintiff is $104,379.84 less an off set of $2,812.50 for a total of $101,567.34;
A. Said sum is to be paid in full to the plaintiff on or before July 31, 2019;
B. Minimum monthly payments of $1,000 must be made to the plaintiff commencing August 1, 2017;
C. If the full amount is not paid in full on or before July 31, 2019, a penalty of 10 percent per annum will accrue on the full amount as of August 1, 2017 regardless of what the actual balance due might be and shall continue to accrue as simple interest until the full amount of the judgment plus any penalty payments are paid in full;
D. Failure to make the required minimum payments will allow the plaintiff to seek payment of the full amount prior to the final payment date and the penalty payment will be incurred at that time; and
VIII. No legal fees or costs are awarded to either party.