Opinion
FSTFA094017029S
11-28-2017
Paul TUZINKIEWICZ v. Kristin TUZINKIEWICZ
UNPUBLISHED OPINION
OPINION
HELLER, J.
The plaintiff Paul Tuzinkiewicz and the defendant Kristin Tuzinkiewicz, now known as Kristin Tol, were divorced on March 29, 2011. The dissolution judgment (Novack, J.T.R.) (# 177.55) incorporated by reference the parties’ separation agreement, dated March 29, 2011 (the March 2011 separation agreement) (# 176.00). The parties entered into a stipulation modifying the alimony and child support provisions set forth in the March 2011 separation agreement on February 16, 2016 (the February 2016 stipulation). On May 4, 2017, the defendant filed a motion for contempt, postjudgment (# 207.00), in which she alleges that the plaintiff has violated the February 2016 stipulation by failing to pay the full amount of the unallocated alimony and child support due to her for the months of February and April 2017.
The defendant’s motion for contempt, postjudgment, was on the August 7, 2017 short calendar. Both parties, each of whom was self-represented, appeared before the court on that date. The court heard testimony from each party and reserved decision at that time.
I
At issue are provisions in the February 2016 stipulation concerning the payments that the plaintiff is required to make to the defendant each month as unallocated alimony and child support. Pursuant to paragraph 1(a) of the February 2016 stipulation, " [c]ommencing with [the] pay period following the entry of this order and up to and including the pay period ending August 31, 2020, the Husband shall pay the Wife unallocated alimony and child support at the rate of forty (40%) percent of his first Five Hundred Thousand Dollars ($500,000) of his gross annual earned income plus fifteen percent (15%) of the Husband’s gross annual earned income from Five Hundred [Thousand] and One ... Dollars ($500,001) through One Million Dollars ($1,000,000), and a further ten (10%) percent of his gross annual earned income from One Million and One Dollars ($100,000,001) to One Million Five Hundred Thousand Dollars ($1,500,000)."
Paragraph 3 of the February 2016 stipulation provides in pertinent part that " [a]s of the date of this stipulation the Husband’s compensation is broken down into three distinct parts: (1) bi-monthly regular pay paid on the 15th and 30th of the month; (2) commissions typically paid once per month; and (3) a bonus which is typically paid once per year in April for performance during the previous calendar year. In recognition of the mandatory tax withholding requirement of the Husband as set by his employer, the Husband shall pay the sums set forth in paragraph 1 of this Stipulation as follows: a. For the Husband’s bi-monthly regular pay he shall pay forty (40%) [percent] of his net pay after ‘mandatory deductions.’ The balance due the Wife between the forty (40%) percent of the net pay after mandatory deductions and the forty (40%) percent of gross income due her pursuant to paragraph 1 above (hereinafter the ‘Support Underpayment’) shall be paid to her in accordance with paragraph 4 herein. b. For the Husband’s commission payments he shall pay forty (40%) percent of his net pay after mandatory deductions unless his commission check(s) for the month is $15,000 or more in which event he shall pay forty (40%) of the total gross commission received. The balance due the Wife between the forty (40%) percent net pay after mandatory deductions and the income due her pursuant to paragraph 1 above (hereinafter the ‘Support Underpayment’) shall be paid to her in accordance with paragraph 4 herein. c. For the Husband’s bonus payments, the Husband shall pay forty (40%) of the gross amount to the Wife."
Pursuant to paragraph 4 of the February 2016 stipulation, " [t]he accrued Support Underpayment for the preceding calendar year shall be paid in one lump sum to [the] Wife as follows: a. The Husband shall file his state and federal tax returns by February 10 each year and direct all overpayments/refunds due him to the [sic] be refunded to an account solely in the Wife’s name and controlled by her ... From the sums deposited into her account due to the deposit of the Husband’s tax refund(s), she shall be entitled to keep the sum of money necessary to satisfy the Support Underpayment due her for the previous calendar year ... b. If there are insufficient funds to satisfy the Support Underpayment pursuant to the mechanism set forth in paragraph 4a, the Support Underpayment or any remaining portion thereof, shall be paid from the Husband’s April bonus over and above what the Wife is already entitled to receive pursuant to paragraphs 1 and 3c herein."
Paragraph 6 of the February 2016 stipulation provides that " [t]he Husband shall make his payments to the Wife on a monthly basis. Should the Wife fail to receive the unallocated alimony and support payments within the first three (3) days of the month, the Husband shall be responsible for interest on the amount due at the simple interest rate of ten (10%) percent per annum until such time as the entire amount due to the Wife is paid to her even if one day late. Furthermore, the Husband shall be responsible for all counsel fees and costs incurred by the wife due to her pursuit of any late unallocated alimony and support payments. The Superior Court shall enforce the provisions of this paragraph regardless of whether the Husband is found in contempt."
The defendant testified that the plaintiff owed her unallocated alimony and child support in the amount of $6,925.99 for February 2017 and $16,139.27 for April 2017. She said that the plaintiff has interpreted paragraph 6 of the February 2016 stipulation to mean that he only has to pay her 10 percent interest on the past due payments of unallocated alimony and child support while deferring the payments themselves. According to the defendant, the plaintiff wants to wait until February 2018, when his tax refund will be applied to the Support Underpayment, to pay her the balance of the unallocated alimony and child support payments due for February 2017 and April 2017. She does not consider herself to be the plaintiff’s " personal bank, " particularly when she has her own financial obligations to pay. In her view, the plaintiff is in breach of the February 2016 stipulation by failing to pay the full amounts due her for February 2017 and April 2017.
The plaintiff testified that the alimony and child support provisions in the February 2016 stipulation were intended to take into account that he is a commissioned salesman. He said that his cash flow is particularly of concern in April, when he receives 25 to 30 percent of his annual income in the form of his bonus. After mandatory tax withholdings, he only receives 55 percent of the bonus in cash, but he is obligated to pay 40 percent of the gross amount to the defendant. In April 2017, he elected to keep $15,000 of the amount he would otherwise have paid to the defendant to meet his own cash flow needs, with the expectation that he would catch up in February 2018. The plaintiff explained that this situation was specifically contemplated by paragraph 6 of the February 2016 stipulation, with the provision that he would pay 10 percent interest on the amount owed to the defendant until it was paid, and in paragraph 4, which sets forth the procedure for payment of the Support Underpayment. The flaw in the plaintiff’s analysis, however, is that the Support Underpayment is specifically defined in the February 2016 stipulation to mean the difference between 40 percent of the plaintiff’s net pay, after mandatory withholdings, and 40 percent of the plaintiff’s gross income. It does not include any shortfall that results from the plaintiff’s paying less in monthly unallocated alimony and child support than required under paragraph 3 of the stipulation.
It is apparent from the parties’ testimony that their respective monthly cash flow presents an issue for both of them. The plaintiff contends that he is permitted under the February 2016 stipulation to hold back part of a monthly unallocated alimony and child support payment due to the defendant to meet his own cash flow needs- paying 10 percent annual interest until the balance is satisfied in full- without violating the terms of the stipulation, even though the defendant is left to meet her own obligations on whatever the plaintiff decides he can afford to pay in a particular month until she is made whole with the annual payment of the Support Underpayment. The court does not agree.
II
" Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Citation omitted; internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). " Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts ... Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt ..." (Emphasis in original; citations omitted; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). " In a civil contempt proceeding, the movant has the burden of establishing ... the existence of a court order and noncompliance with that order ..." (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014). Indirect civil contempt, as is alleged here, must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). " To constitute contempt, a party’s conduct must be wilful ... Noncompliance alone will not support a judgment of contempt." (Citations omitted; internal quotation marks omitted.) Oldani v. Oldani, 132 Conn.App. 609, 625-26, 34 A.3d 407 (2011), abrogated in part on other grounds by Brody v. Brody, supra, 315 Conn. at 316. " [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995). " A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). " [It] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order." (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn.App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).
The court finds by clear and convincing evidence that the plaintiff had notice of the orders set forth in the February 2016 stipulation regarding payment of unallocated alimony and child support, and that the orders are clear and unambiguous. The court does not, however, find that the plaintiff wilfully violated the February 2016 stipulation when he failed to make the February 2017 and April 2017 unallocated alimony and child support payments in full; rather, it appears that the plaintiff believed that he had the right to pay less than the full amount as long as he paid 10 percent interest on the shortfall until the defendant was made whole. While the plaintiff was mistaken as to the terms of the February 2016 stipulation, his misunderstanding does not rise to the level of contempt.
Although the court declines to hold the plaintiff in contempt for failing to pay the full amount due to the defendant for unallocated alimony and child support in February 2017 and April 2017, the court finds that the plaintiff breached the terms of the February 2016 stipulation when he failed to make those payments in full when due. The plaintiff owes the defendant unallocated alimony and child support in the amount of $6,925.99 for February 2017 and $16,139.27 for April 2017, together with interest on each payment at the rate of 10 percent per annum from the date that it was due until the date that it is paid. The plaintiff shall make each of these payments, together with accrued interest, to the defendant within twenty days of the date of this memorandum of decision.
The court has calculated the per diem interest on the February 2017 shortfall to be $1.90 for the February 2017 shortfall and $4.42 for the April 2017 shortfall.
III
The court has fully considered the applicable statutes, the relevant case law, the evidence, the demeanor and the credibility of the parties, and the contents of the court file in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
To the extent that the defendant seeks an order holding the plaintiff in contempt for failing to pay her the full amount of unallocated alimony and child support due for February 2017 and April 2017, her motion for contempt, postjudgment (# 207.00) is hereby DENIED. In view of the court’s finding that the plaintiff is in breach of the terms of the February 2016 stipulation, however, it is hereby ORDERED as follows:
1. The plaintiff shall pay the defendant $6,925.99, representing the balance due for unallocated alimony and child support for February 2017, together with interest thereon at the rate of 10 percent per annum from the date that the payment was due until the date that it is paid;
2. The plaintiff shall pay the defendant $16,139.27, representing the balance due for unallocated alimony and child support for April 2017, together with interest thereon at the rate of 10 percent per annum from the date that the payment was due until the date that it is paid; and
3. The plaintiff shall make each of these payments, together with the accrued interest, to the defendant within twenty days of the date of this memorandum of decision.