Opinion
No. FA92-0339295
March 10, 2005
MEMORANDUM OF DECISION RE #130 PLAINTIFF'S MOTION FOR CONTEMPT, AND #118 #118.5 DEFENDANT'S MOTION TO MODIFY, FILED OCTOBER 23, 1997
FACTS
On November 30, 1994, a decree of dissolution was rendered dissolving the marriage between the plaintiff, Lynn Tobin f/k/a Lynn Welch, and the defendant Kenneth Welch and which incorporated by reference the terms of the separation agreement, also dated November 30, 1994. The agreement provided, inter alia, that the plaintiff and the defendant share joint legal custody of their four minor children, Lindsey, Jessica, and the twins, Radford and Samantha. The agreement also provided for unallocated alimony and child support of $800 per week through November 1997. The children have resided with the plaintiff.
On October 28, 1997, the defendant filed a motion for modification to set an appropriate child support award pursuant to the child support guidelines established in General Statutes 46b-215a. The plaintiff was served with notice and a hearing was scheduled in November 1997. This motion, however, was continued and not ruled upon by the court. After November 30, 1997, the defendant continued to pay child support in an amount determined by the plaintiff with the assistance of his accountant and lawyer. The court would note that this determination was made without considering the income of the plaintiff.
Section 46b-215a provides in relevant part: "The Commission for Child Support Guidelines is established to review the child support guidelines promulgated pursuant to section 8 of public act 85-548, to establish criteria for the establishment of guidelines to ensure the appropriateness of child support awards and to issue updated guidelines not later than October 1, 1993, and every four years thereafter. Not later than January 1, 1992, the commission shall also establish criteria and promulgate guidelines to ensure that such orders of payment on any arrearage and past due support shall be based on the obligor's ability to pay. Such guidelines shall also ensure the appropriateness of periodic payments of arrearages . . ."
On December 16, 1997, and on January 20, 1998, the plaintiff brought, but never pursued, the first of several contempt motions for failure of the defendant to pay what she deemed to be the proper child support award. On February 5, 1998, the plaintiff brought a motion to bar the defendant from reclaiming his motion for modification filed on October 28, 1997, which was then denied by Judge Kenefick on February 18, 1998, in order that the parties move ahead and resolve the issue of child support. The defendant has done nothing since that time to return to court and establish a new child support order.
On December 20, 1999, the plaintiff brought another motion for contempt, again on February 24, 2000, and again on June 29, 2000. On October 31, 2003, the plaintiff brought an application for rule to show cause and to hold the defendant in contempt. It is this pleading which is currently before the court.
A hearing on January 14 and on March 11, 2004 was held on the plaintiff's motion for contempt and the defendant's motion for modification from 1997, at which both the plaintiff and defendant testified. The plaintiff attested that no child support order was in effect since November 1997, nonetheless she continued to receive weekly payments from the defendant. She further testified that she continued to file motions for contempt because there was no court order for an award of child support but did not prosecute any of them until the present case before the court. The defendant testified that he knew no child support award was in effect as of November 1997, but according to the advice received from his attorney and accountant, he continued to pay an amount consistent with, if not more than, the child support guidelines in effect at the time. He further testified that he was always ready to bring the matter before the court, but that the plaintiff was constantly seeking discovery, which resulted in no court order for child support.
ISSSUES:
The issues before the court are:
(1) Whether the court should grant the plaintiff's motion for contempt;
(2) Whether the defendant's motion to modify, originally filed on October 23, 1997, but never resolved, is properly before the court to permit a redetermination of the defendant's weekly child support obligation: and
(3) Whether any redetermination of an award of child support is retroactive to 1997.
DISCUSSION CT Page 4427
Connecticut procedure authorizes motions for contempt to enforce compliance with court orders. Practice Book Section 25-27. "[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases . . . To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt." (Citation omitted; internal quotation marks omitted.) Detels v. Detels, 79 Conn.App. 467, 470, 830 A.2d 381 (2003). "The burden of establishing a prima facie showing of contempt, in this case the willful disobedience of a court order, falls upon the [moving party]." Morris v. Morris, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FA 01 384330 (September 4, 2003, Dewey, J.)Where the separation agreement of the parties is "incorporated . . . into the dissolution [decree,] [a] judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract . . . Accordingly, [o]ur resolution of the [parties'] [claims are] guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the 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 . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citations omitted; internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999); see Amodio v. Amodio, 56 Conn.App. 459, 470, 743 A.2d 1135, cert. granted, 253 Conn. 910, 754 A.2d 160 (2000), appeal withdrawn September 27, 2000.
The separation agreement provides in relevant part: paragraph "3.1 Beginning December 1, 1994, the Husband shall pay to the Wife as unallocated alimony and child support the sum of Eight Hundred ($800.00) Dollars per week. Paragraph 3.2 the unallocated alimony and support order shall terminate on the first of the following events to occur: A. Either party's death; B. Change in custody; or C. Three (3) years from the date of dissolution on November 30, 1997. It shall under no condition be modifiable after three (3) years. At that time the court shall review the orders, taking into consideration the circumstances of the parties and the child support guidelines. Paragraph 3.3 The Husband and Wife agree that the $800.00 per week sum, to the extent not paid, will accrue, as an arrearage. The parties also agree that the Husband shall pay at least $600 per week on this order. Any arrearage at the end of the alimony term shall be paid at the rate of $200 per week."
The plaintiff argues that the defendant, on his own, reduced his weekly child support payments in violation of the child support guidelines and presently is paying $250 per week. She further argues that at no time did the defendant obtain an order from the court reducing the amount of child support he owed nor did he have the court resolve his 1997 motion for modification. In addition, the plaintiff claims that this motion is stale and based on the rules of practice, Practice Book Section 25-34(c), no motion may be reclaimed after a period of three months from the date of filing unless good cause can be shown, which the defendant cannot do in the present case.
Section 25-34 provides in relevant part: "(c) Failure to appear and present argument on the date set by the judicial authority shall constitute a waiver of the right to argue unless the judicial authority orders otherwise. Unless for good cause shown, no motion may be reclaimed after a period of three months from the date of filing."
In response, the defendant argues:
1. That he has continuously made his child support payments comparable to those required of him by the child support guidelines;
2. That based on the law and the separation agreement, the court must make a de novo determination and set forth an order for the amount of child support owed per week consistent with the guidelines after 1997;
3. That with respect to the plaintiff's position that the award should be $600 per week, he claims laches as an equitable defense because the plaintiff never objected to the amount he was paying per week and for him to pay retroactive support for seven years would be unjust and inequitable;
4. That contempt proceedings require a showing of willful conduct in addition to noncompliance with a court order and he has always paid an amount congruous with the child support guidelines, and no court order has existed since 1997.
It is the defendant's position that the language of the separation agreement precludes modification and requires the court to make a new determination as to the amount of child support based on the financial circumstances of the parties from 1997 forward, and, then, compare that amount with the amount he paid during the period in which there was no court order.
The authority of the court to refashion awards of alimony and child support is set forth in General Statutes Section 46b-86. That section provides in relevant part: "(a) Unless and to the extent that the decree precludes modification, the court may order . . . any final order for the periodic payment of permanent alimony or support . . . be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate . . . No order for retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50." "The plain language of Conn. Gen. Statutes Section 46b-86(a) also makes clear that if a decree precludes modification, to the extent that it does, no modification may be had." Amodio v. Amodio, supra, 56 Conn.App. 472.
In the present case, initial child support in an amount deemed appropriate was agreed upon by the parties, reduced to writing, with a further provision that the amount of unallocated alimony and support order will automatically terminate on one of three conditions, but no later than three years from the date of dissolution on November 30, 1997, after which no further modification of the unallocated alimony and child support may take place. The defendant's motion filed in 1997 was timely brought prior to the triggering of the no modification provision. No court order, however, was rendered at that time, and, in fact, no order was issued until 1998. On February 18, 1998, Judge Kenefick rendered an order denying the plaintiff's motion to bar the defendant from reclaiming his 1997 modification motion in order that the parties resolve the issue of child support.
A modification has been defined as a "change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact." Santoro v. Santoro, 70 Conn.App. 212, 217, 797 A.2d 592 (2002). In addition, the court can enter orders clarifying the terms of the decree, if necessary; Holcombe v. Holcombe, 22 Conn.App. 363, 366, 576 A.2d 1317 (1990); Cattaneo v. Cattaneo, 19 Conn.App. 161, 163-65, 807 A.2d 1017 (1989); or for the correction of an obvious error where, for instance, the intent of the court is clear from a reading of the decree as a whole. Rome v. Album, 73 Conn.App. 103, 113, 807 A.2d 1017 (2002). It is not the province of the trial court, however, to re-write the decree simply because the altered result would be more fair to a party, where the original meaning and intent are clear. Simmons v. Simmons, 244 Conn. 158, 183-84, 708 A.2d 949 (1998).
The Appellate Courts have stated that "[p]rovisions that preclude modification tend to be disfavored . . . When a provision in a divorce decree that precludes or restrict a latter court's powers to modify financial orders is clear and unambiguous, however, that provision will be upheld." (Internal quotation marks omitted.) Wichman v. Wichman, 49 Conn.App. 529, 535, 714 A.2d 1274, cert. denied, 247 Conn. 910, 719 A.2d 906 (1998). On the other hand, if a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable. Bronson v. Bronson, 1 Conn.App. 337, 339, 471 A.2d 977 (1984).
"[U]nder our law the child support component of the unallocated alimony and child support payment is modifiable. Blazier v. Blazier, Superior Court, judicial district of Waterbury, Docket No. [FA 94] 0120166 (July 17, 7998, Vertefeuille, J.)." Florita, v. Florita, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 92 0126887 (January 11, 2000, Hiller, J.). In addition, "[i]n Guille v. Guille, 196 Conn. 260 [266-67, 492 A.2d 175] (1985) . . . the Supreme Court held that the statute [section 46b-86(a)] does not restrict the court's power to modify child support. The court rejected the contention that parents, by agreement and in reliance on General Statutes 46b-86(a), can preclude modification of a child support order. Citing Guille, the Appellate Court held in Rempt v. Rempt, 5 Conn.App. 85, 88-89, [ 496 A.2d 988] (1985), that the child support portion of an unallocated award of alimony and child support can be modified despite a provision in the divorce decree that the unallocated order was not modifiable as to term or amount." (Internal quotation marks omitted.) Florita v. Florita, supra, Superior Court, Docket No. FA 92 0126887.
After three years from the date of dissolution in the present case, the language of the agreement precluded modification of the unallocated alimony and support order and also required that the court review the order and redetermine the amount of child support consistent with the circumstances of the parties and the child support guidelines. The agreement further stated that if the Husband has not paid the $800 per week sum due from November 1994 through November 1997, it will be a part of his arrearage and will be paid down at the rate of $200 per week, but at all times during this three-year period, the Husband must pay a minimum of $600 per week of unallocated alimony and child support. The language of the agreement is not clear and unambiguous. It neglects to provide for the contingency if at the end of the three years from dissolution the parties fail to have the court redetermine the amount of child support owed, for the amount owed upon each child reaching the age of majority and for renegotiations. Our courts and the legislature in enacting Conn. Gen. Statutes Section 46b-86(a) have clearly evinced a concern for the rights of minor children in marital dissolution proceedings such that divorcing parents cannot stipulate into the divorce decree a contractual limit as to their children's right to support. Guille v. Guille supra, 196 Conn. 266-67.
Whether this court connotes the defendant's motion as one for modification based on an ambiguity in the separation agreement or as a motion to enforce/effectuate the decree and redetermines the amount of child support, it is properly before the court. General Statutes Section 46b-1(4) provides the Superior Court with general subject matter jurisdiction over legal disputes in family relations matters, including alimony and support, and as noted previously, General Statutes Section 46b-86(a) provides the trial court with continuing jurisdiction to modify support orders. Together, therefore, these two statutes provide the trial court with subject matter jurisdiction over the defendant's claim in the present case. See Amodio v. Amodio, 247 Conn. 724, 730, CT Page 4432 724 A.2d 1084 (1999). It is undisputed that courts must consider the child support guidelines in all determinations of child support. General Statutes Section 46b-215b(a). That includes postjudgment modifications of child support. General Statutes 46b-215b(a) provides in relevant part: "The child support and arrearage guidelines . . . shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state . . . [T]here shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support . . . to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case . . ."
"Section 46b-215a-3 of the Regulations of Connecticut State Agencies contains the deviation criteria established by the commission for child support guidelines. Further, Section 46b-215a-3 provides that in addition to making a specific finding that following the guideline would be inequitable or inappropriate, the court must state the amount that would have been required under the guidelines and the deviation criteria relied on by the court to justify deviation." (Internal quotation marks omitted.) Syragakis v. Syragakis, 79 Conn.App. 170, 176, 829 A.2d 885 (2003).
The court must calculate the amount due from November 1997 through the present in accordance with the then-existing child support guidelines based on the financial affidavits and any other relevant documents that the parties filed at the time of the dissolution, as well as the present child support guidelines with financial affidavits subsequently filed through the present to determine the amount of child support owed by the defendant. The court must also determine whether there is a child support arrearage from 1997 to the present. The court must then recalculate the child support obligation and its duration in accordance with the child support guidelines as each child reaches or reached the age of majority.
Additionally, the defendant is claiming the defense of laches in the plaintiff's delay to prosecute any motion for contempt until now, and, that because she accepted the payments he made over the course of the years beginning in 1997, any support order from the court should not be retroactive to November 1997. "Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief in equity." Traggis v. Shawmut Bank of Connecticut N.A., 72 Conn.App. 251, 262, 805 A.2d 105 (2002). Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 487 n. 21, 717 A.2d 1177 (1998); see also Sablosky v. Sablosky, 72 Conn.App. 408, 413, 805 A.2d 743 (2002). "Lapse of time, alone, does not constitute laches. It must result in prejudice to the defendant as where, for example, the defendant is led to change his position with respect to the matter in question . . . or the delay works a disadvantage to another." (Citation omitted.) LaSalle National Bank v. Shook, 67 Conn.App. 93, 98-99, 787 A.2d 32 (2001).
In the present case, the evidence offered failed to show that the plaintiff's delay was "inexcusable" and "prejudicial to the defendant." Although the plaintiff filed several motions for contempt, she never pursued most of them. The defendant, however, made no attempt to determine the true state of the child support agreement and the necessary payments under it either.
It is the plaintiff's claim that the defendant's motion for modification from 1997 is stale, and not properly before the court because it was never heard by a court within the three-month requirement of the Conn. Practice Book Section 25-34(c) and that the defendant has shown no good cause to reclaim the motion. Section 25-34(c) provides that "[u]nless for good cause shown, no motion may be reclaimed after a period of three months from the date of filing."
In 1998, Judge Kenefick denied the plaintiff's motion to bar the defendant from reclaiming his 1997 modification motion so that the parties would resolve the child support issue. The parties, however, failed to resolve this issue through the courts until now. Instead, the defendant continued to pay what he deemed to be the appropriate child support obligation and the plaintiff filed, but did not pursue, numerous motions for contempt. The court can find that the defendant's motion is properly before the court and permit modification of the original child support order or find that the motion is stale but clarify the terms of the decree and calculate the appropriate support required in accordance with the child support guidelines. This will require an evidentiary hearing and/or the submission of tax-returns, financial affidavits and Child Support Guideline calculations for the years 1997-2004.
Finally, as to the plaintiff's motion for contempt, "[i]t 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.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). Based on the advice of his attorney and accountant, the defendant believed his support payments were in conformity with the child support guidelines, and, in fact, may have been more than what was required. Not only did the plaintiff accept the payments from the defendant but also she did not prosecute any of her prior motions for contempt. Accordingly she has failed to prove willful noncompliance by the defendant with respect to his support obligation to the children from 1997 to the present. It is submitted that the court should deny the plaintiff's motion for contempt.
ORDERS
1. The court denies the plaintiff's motions for contempt; and
2. Orders the parties to redetermine the child support obligation of the defendant in accord with the child support guidelines from 1997 forward. The Defendant's 1997 Motion for Modification should be resolved by the parties or heard by the court;
3. If the parties are unable to resolve the matter within three weeks of the date of this decision the matter should be set down for a hearing on an expedited basis.
Holly Abery-Wetstone, J.