Opinion
FBTFA084025930S
05-03-2016
Claire C. Sussman v. Jeffrey T. Sussman
UNPUBLISHED OPINION
Filed Date May 4, 2016
MEMORANDUM OF DECISION
Howard T. Owens, Judge Trial Referee.
By complaint dated August 14, 2008 the plaintiff filed an action for dissolution of marriage on May 1, 2009, judgment of dissolution entered and said judgment incorporated the parties' separation agreement. Prior to the separation agreement being entered into both parties had independent legal representation and advice.
The defendant pursuant to his testimony had retained counsel several months before terminating that engagement. The parties, both of whom are highly educated, agreed to and found the agreement to be fair and equitable. On pages 1 and 2 of the parties' Separation Agreement dated May 1, 2009, they represented that they were fully advised to by their respective attorneys as to his or her rights against the other, and to the income, assets and prospects of the other. The defendant admits to having consulted with an attorney prior to signing the separation agreement. Pursuant to the parties' agreement they were equally responsible for the expenses of their child, Sarah. The plaintiff was awarded ownership of the marital home. She assumed responsibility for the home mortgage (approximate balance ($406,000). She was also responsible to pay off the home equity loan which had a balance of approximately $221,000.
The parties were to indemnify each other from liabilities regarding their respective obligations. From 2009 through 2011 the plaintiff made mortgage payments on both the defendant mortgage obligation and the Ludlow HELOC/obligation because the defendant refused to pay same. In accordance with the separation agreement the terms of defendant's obligation were clearly set forth. It required that the defendant make good faith minimum quarterly payments and his quarterly payments were based on his then annual gross income. In lieu of full monthly payments the defendant was allowed to make good faith minimum quarterly payments until May 1, 2019 when all balances were to be paid in full. Because of defendant's default in 2011 plaintiff could no longer pay the Ludlow mortgage that was being foreclosed in 2014. The proceeds of the sale left the plaintiff with a deficiency on the Ludlow mortgage and the HELOC obligation. The defendant has simply made no payments in accordance with the Court's judgment.
There are two levels of inquiry in deciding the issue of contempt. First, a determination must be made whether or not the underlying language in the agreement and subsequent judgment was sufficiently clear and unambiguous. The clarity and unambiguity of the parties' agreement is abundantly clear. The second element has also been established. The violations are wilful and not excused by a good faith excuse or misunderstanding. Buehler v. Buehler, 138 Conn.App. 63, 72, 50 A.3d 372 (2012).
To find the defendant in contempt the plaintiff must show that the defendant wilfully violated the Court's orders without a good faith excuse. Ciottone v. Ciottone, 154 Conn.App. 780, 788, 107 A.3d 1004 (2015). The burden showing an inability to pay rests upon the defendant. The plaintiff must show by a preponderance of the evidence the existence of the order and defendant's non-compliance with same. Marshall v. Marshall, 151 Conn.App. 638, 650-51, 97 A.3d 1 (2014).
The defendant does not seriously dispute that the agreement's orders were clear and unambiguous.
While the agreement was more complex than the traditional agreement it was well drafted and succinct. Their obligations with respect to their daughter clearly spelled out their respective duties.
The defendant makes the capricious assertion that he was forced to file bankruptcy. Defendant loses sight of the fact that plaintiff fulfilled her obligation under the separation agreement by paying off the Southport HELOC in full and making payments toward the Ludlow HELOC both of which were defendant's obligations.
At the time of plaintiff's default on the Ludlow, Vermont mortgage the defendant had in excess of $7,000,000 of debt so he was in a hopeless financial situation. It is observed that the defendant had zero debt deriving from the Ludlow property. The defendant's claims that the plaintiff's default caused him all of his financial debt and woes is simply without merit and untruthful. His immense and gargantuan financial obligation at the time of the Ludlow foreclosure was the cause of his bankruptcy.
The claim that plaintiff materially breached the separation agreement is fallacious. There was no material breach of the parties' separation agreement by the plaintiff.
Assuming arguendo, that some breach occurred the plaintiff categorically denies that she breached any part of the parties' detailed agreement. She paid the Ludlow mortgage for two years. The defendant during this time frame failed to satisfy any of his obligations pursuant to the parties' separation agreement which he blatantly breached from its inception causing his ex-wife to default on the Ludlow mortgage. The defendant had no debt relating to the Ludlow mortgage while plaintiff was required to pay defendant's obligation on the HELOC. In accordance with the underlying meaning and purpose of the agreement the defendant is ordered to make whole to the plaintiff the expenses paid by the ex-wife in order to partially fulfill his obligations.
There is nothing in the parties' separation agreement that mandates the plaintiff to a forfeiture for failing to file a quarterly report nor is there any language in the agreement that requires the parties to prove that the expense was reasonable before it was paid. The defendant has failed to reimburse the plaintiff for his clear obligations to pay Sarah's expenses by asserting a claim of lack of notice. Lombardi v. Lombardi, 2002 WL 31954916 (December 31, 2002) . See also Bouchard v. Bouchard, 2001 WL 359036 (359036). where a failure to engage children in counseling did not discharge a duty to provide post-majority support. The defendant's claim that the plaintiff is barred by the doctrine of laches is simply without merit. The defendant has failed to set forth or prove that plaintiff's alleged delay was inexcusable or that he was prejudiced by any delay that was occasioned by his conduct. Sablosky v. Sablosky, supra, 72 Conn.App. 408, 413, 805 A.2d 745; Carpender v. Sigel, 142 Conn.App. 379, 387, 67 A.3d 1011 (2013).
Orders
The defendant willfully, and without a good faith or excuse, violated a clear and unambiguous order to make good faith, minimum quarterly payments to the plaintiff. Those payments were to be applied to all of his outstanding financial obligations, none of which were discharged. The Court grants plaintiff's motion for contempt and enters orders as follows.
1. The defendant is in contempt of the final judgment of Dissolution of Marriage, dated May 1, 2009;
2. The defendant shall pay the current outstanding balance of the good faith, minimum quarterly payments he owes to the Plaintiff, based on his gross annual income and tax returns, totaling $243,380.30 plus the to-be determined 2015 within 60 days of this Order;
3. The defendant shall pay toward plaintiff's attorneys fees associated with prosecuting her motion for contempt, the sum of $12,500; within thirty (30) days from the date of this judgment.