Opinion
FA054003259S
08-18-2017
Daniela Wellesley v. Alister M. Wellesley
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael E. Shay, Judge Trial Referee.
The marriage of the parties was dissolved by decree of this court on August 2, 2005, at which time the parties filed with the court a certain Agreement (#119.10) of even date therewith that the court approved and incorporated in the decree. They are the parents of two children, to wit: Matilda, age 18; and Sebastian, age 15. Matilda will enter her senior year of high school this fall. Both parents currently reside in Raleigh, North Carolina. At the time of the dissolution of marriage, the parties were awarded joint legal custody, and the children resided with the plaintiff mother (" mother") in Canada. The mother has since remarried. In January 2014, the parties briefly resumed living together, until the mother moved out in August 2014, at which time she left the children with the father, and returned to her current husband. Currently, and since April 2016, the daughter Matilda resides full-time with the mother. The son Sebastian has been living full-time with the defendant father (" father") since January 2014, and the father seeks an order of sole custody of the child. All alimony and child support payments stopped after 2014. There are no orders modifying the original order of custody.
The Separation Agreement also provided that the father would pay to the mother the sum of $10, 000.00 per month in Canadian Dollars, as and for periodic unallocated alimony and child support until the death of either party, or June 30, 2020, whichever shall sooner occur. It was expressly set forth in Article 3.1 therein, that the remarriage or cohabitation of the mother would not be grounds to modify the alimony, and it was further set forth that the duration of the alimony was unmodifiable beyond that date. The mother was given a " safe harbor" for earned income of $50, 000.00. The father claims that the payments were intended to be all child support, something the mother denies. In addition, the father seeks a credit for other expenditures on behalf of the children in lieu of child support. The father's claims are simply not credible. Since December 2007, the father's payments to the wife have been inconsistent, and since 2014 have ceased altogether.
The father is 53 years old and holds a bachelor's degree. He appeared to be in good health, and he described no adverse health conditions to the court. At the time of the dissolution, the husband reported a net income of $180, 180.00. He is a self-employed executive recruiter and reports a gross annual income of $60, 248.00 on his current financial affidavit (#143.00) dated August 8, 2017 as on file with the court. A Child Support Guidelines Worksheet prepared by the court based upon the gross income shown on his financial affidavit shows a net income of $45, 136.00 per annum.
The mother is approximately 45 years old, and she holds a bachelor's degree in Literature. She, also, appeared to be in good health and described no adverse health conditions to the court. The wife has not worked outside the home for many years. Both at the time of the dissolution and as of this date, she reports no income from employment.
The matter comes to this court by way of the father's Motion for Modification of Custody and Unallocated Child Support and Alimony (#127.01) dated August 21, 2015, as well as his Motion to Open Judgment (#127.02) also dated August 21, 2015. For her part, the mother has filed a Motion for Contempt (#129.00) dated September 29, 2015; a Motion for Attorneys Fees (#130.00) also dated September 29, 2015; and a second Motion for Contempt (#134.00) dated February 23, 2016.
The matter was heard on August 8, 2017. At the conclusion of evidence, the court gave the attorney for the mother one week to file an Affidavit of Attorneys Fees in the proper format, and gave the counsel for the father one week therefrom to review same and file any objection. Counsel for the mother filed an Affidavit of Fees dated August 15, 2017. In the absence of a timely objection the evidence closed on August 22, 2017.
FINDINGS
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes § § 46b-56, 46b-82, 46b-84, 46b-86, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:
1. That an award of periodic alimony and/or child support may be modified upon the demonstration of a substantial change of circumstances since the date of the last order, unless the order itself clearly precludes modification; and that where a substantial change of circumstances has been found, the court shall consider the factors set forth in General Statutes § 46b-82. General Statutes § 46b-86(a); Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994); Schorsch v. Schorsch, 53 Conn.App. 378, 382, 731 A.2d 330 (1999); Spencer v. Spencer, 71 Conn.App. 475, 481, 802 A.2d 215 (2002).
2. That there has been a substantial change of circumstances since the date of the last order, in that: (1) the father's net income is substantially lower than at the time of the decree, (2) the minor child, Sebastian, has been residing with the father since January 2104; and (3) that since April 2016 the child Matilda has been residing full-time with the mother; and that therefore, child support must be calculated based upon a split custody arrangement.
3. That a modification of custody must be based upon a substantial change of circumstances affecting the best interest of the minor child; that no credible evidence was offered that would support a finding that it is in the best interest of the minor child Sebastian to modify the underlying joint legal custody arrangement, other than to find that the primary residence of said child is with the father.
4. That in entering an order for child support, a court must consider both General Statutes § 46b-215b and the Child Support and Arrearage Guidelines Regulations (" Guidelines "), as well as the factors set forth in General Statutes § 46b-84, Maturo v. Maturo, 296 Conn. 80, 90-96, 995 A.2d 1 (2010); and that alimony and child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001).
5. That it is equitable and appropriate for the court to consider the earning capacity of the wife in making its orders regarding periodic alimony, Hart v. Hart, 19 Conn.App. 91, 94-95, 561 A.2d 151 (1989); that earning capacity " is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as her education, employability, age, health, and the ages of the children." Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007); that the trial court must " specify an exact earning capacity when calculating an alimony and child support award." Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013); that as of January 1, 2017, the Connecticut minimum wage is $10.10 per hour; that the evidence supports a finding that it is appropriate to impute to the wife, at a minimum, an earning capacity of $21, 008.00 per annum based upon a forty-hour workweek applying minimum wage.
6. That based upon the net income of the father as shown on a Child Support Guidelines Worksheet prepared by the court based upon the income shown on the father's current financial affidavit (#143.00) is $868.00 per week ($3, 761.00 per month); and that based upon her minimum earning capacity, the mother's net income is $384.00 per week ($1, 664.00 per month).
7. That based upon a split custody arrangement, and the net income of the parties, the presumptive basic child support is $256.00 per week ($1, 109.00 per month); and that the father's share is $177.00 per week ($767.00 per month); and the mother's share is $79.00 per week ($342.00 per month). (See " Schedule A" attached hereto and made a part hereof.[*]) The foregoing notwithstanding, it is equitable and appropriate to deviate from the child support guidelines for the period October 1, 2015 through and including March 31, 2016, based upon " other equitable factors" as set forth in § 46b-215a-5c(b)(6)(E), to wit: the father bore the entire support burden for both children during that period.
8. That it is within the discretion of the court to grant a retroactive modification. General Statutes § 46b-86(a); Shedrick v. Shedrick, 32 Conn.App. 147, 151, 627 A.2d 1387 (1993); that the evidence supports a finding that service was made by certified mail return receipt requested; that delivery of service was made on September 10, 2015; and that it is equitable and appropriate that all alimony and support orders be retroactive to October 1, 2015.
9. That the court order dissolving the marriage of the parties provided, inter alia, that the father would pay to the mother the sum of $10, 000.00 Canadian Dollars per month as and for unallocated alimony and support; that the parties have stipulated and agreed that for purposes of this order, the current exchange rate is $1.00 U.S. Dollar to $1.26 Canadian Dollars; and that the alimony and support order is the equivalent of approximately $7, 936.50 U.S. Dollars per month in unallocated alimony and child support.
10. That there is an arrearage in unallocated alimony and child support through September 30, 2015, in the amount of $615, 295.00 (93 mos. x $7, 396.50 = $738, 096.00 less a credit of $122, 801.00); that there is a further arrearage in periodic alimony through the date of this order in the amount of $4, 991.00 (23 mos. x $217.00; that there is a further arrearage in child support through the date of this order in the amount of $7, 225.00 (17 mos. x $425.00); and that the total arrearage to date is $627, 511.00.
11. That a finding of contempt must be based upon a willful failure to comply with a clear and unequivocal order of the court. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001); that mere " noncompliance alone will not support a judgment of contempt." Gil v. Gil, 94 Conn.App. 306, 311, 892 A.2d 318 (2006); that " a judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper hearing." Kelly v. Kelly, 54 Conn.App. 50, 60, 732 A.2d 808 (1999); that " a finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony." Dickinson v. Dickinson, 143 Conn.App. 184, 190, 68 A.3d 182 (2013); that indirect civil contempt " should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015); and that under all the circumstances, (1) as to Motion #129.00 the evidence does not support a finding that the father's actions amount to willful contempt as he did not have sufficient income to fully comply with the original order; and (2) that as to Motion #134.00 the mother has failed to demonstrate by clear and convincing evidence that there was a clear and unequivocal order regarding discovery, and that she has therefore failed to meet her burden of proof.
12. That a " party claiming fraud has the burden of proof; that fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed; that the elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment"; that there are three limitations on the court's ability to grant relief from a dissolution agreement secured by fraud: " (1) there must be no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different." Terry v. Terry, 102 Conn.App. 215, 223, 925 A.2d 375 (2007).
13. That testimony supports a finding that during the period following the filing of the Complaint, both parties maintained extra-marital relationships that were at some point known to the other party prior to the decree of dissolution; that the Agreement of the parties provided that the alimony award would continue, even in the case of the remarriage or cohabitation of the mother; that, in fact, the mother remarried shortly after the decree dissolving the marriage, and that the father was aware of that fact; that the father could have easily raised the issue of fraud shortly after the discovery of the mother's remarriage, and certainly within the four-month period following the decree of dissolution; that it is unlikely that under all the facts and circumstances, a new trial would have resulted in a different outcome; and that the husband has not met his burden of proof.
14. That some portion of the unallocated alimony order was attributable to child support. Kolkmeyer v. Kolkmeyer, 18 Conn.App. 336, 341, 558 A.2d 253 (1989), Matles v. Matles, 8 Conn.App. 76, 511 A.2d 363 (1986); and that at the time of the dissolution of marriage, prior to deviation, the court found the husband's basic child support obligation to be $566.00 per week ($2, 453.00 per month) per the Child Support Guidelines Worksheet (un-coded) dated August 1, 2005 (Exhibit 43), as prepared by the husband's counsel and as on file with the court.
15. That an award of attorneys fees is within the sound discretion of the court; that whenever " any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, and 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation." General Statutes § 46b-87; that the court has reviewed the Affidavit of Attorneys Fees dated August 15, 2017, and while the court finds it to be fair and reasonable, in the absence of a finding of contempt, it is equitable that each party be responsible for their own attorneys fees and costs incurred in this action.
16. That " the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court." Stearns v. Stearns, 4 Conn.App. 323, 327, 494 A.2d 595 (1985); and that, on the whole, the court found the mother's testimony to be more credible.
ORDER
The court having heard the testimony of the parties and considered the evidence, based upon the foregoing, IT IS HEREBY ORDERED THAT:
1. The defendant's Motion to Open Judgment (#127.02) dated August 21, 2015, is HEREBY DENIED.
2. Defendant's Motion for Modification of Custody and Unallocated Child Support and Alimony (#127.01) dated August 21, 2015, is HEREBY DENIED as to Custody, and is HEREBY GRANTED as to Alimony and Child Support:
a. Commencing effective April 1, 2015, and monthly thereafter, the defendant shall pay to the plaintiff the sum of $425.00 per month as and for child support, until such time as the oldest child shall reach the age of eighteen years or shall be otherwise emancipated, at which time child support for the remaining child shall be adjusted in accordance with the then existing Child Support Guidelines or as a Court may otherwise direct. The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b) .
b. Commencing effective October 1, 2015, and monthly thereafter, the defendant shall pay to the plaintiff the sum of $217.00 per month until the death of either party or June 30, 2020, whichever shall sooner occur. Meaning and intending that the remarriage or cohabitation of the wife shall not be cause for termination of alimony .
c. Commencing September 1, 2017, and monthly thereafter, the defendant shall pay to the plaintiff the sum of $500.00 per month toward the balance of the arrearage in the amount of $627, 511.00, until such time as said sum shall be paid in full.
3. The plaintiff's Motion for Contempt (#129.00) dated September 29, 2015, is HEREBY DENIED.
4. The plaintiff's Motion for Contempt (#134.00) dated February 23, 2016, is HEREBY DENIED.
5. The plaintiff's Motion for Attorneys Fees (#130.00) also dated September 29, 2015, is HEREBY DENIED, and each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
6. The Court hereby orders a Contingent Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the alimony and child support orders.
7. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h). [*]Editor's Note: The mentioned Schedule A, pg. 5, par. #7, has not been reproduced.