Opinion
HHDFA030733370S
08-31-2016
Laurie Whelan v. Randy Whelan
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Anna M. Ficeto, J.
This matter comes before the court on plaintiff's Motion for Contempt, Postjudgment (#199) alleging a wiful failure to pay court ordered child support arrearage, child support and unreimbursed medical expenses, and on the plaintiff's Motion for Order Re Educational Support, Postjudgment. A hearing was held on August 12, 2016 and both parties are represented by counsel.
On January 21, 2005, the court, Gruendel, J., ordered the defendant to pay $70 per week in child support retroactive to October 15, 2003. He found an arrearage of $4,480 and ordered the arrearage to be paid at the rate of $14 per week until paid in full. He also ordered that: (i) the plaintiff pay the first $100 of any unreimbursed medical expenses; (ii) the plaintiff pay the remaining two-thirds; and (iii) the defendant pay the remaining one-third. Lastly, the court retained jurisdiction to enter educational support orders.
The defendant paid child support for a " couple of months" following the entry of the court order, then stopped paying and only resumed after the filing of the instant contempt. He has paid $1,100 as of the date of the hearing. He testified that he did not pay child support because the plaintiff had previously filed a contempt motion but " withdrew" the motion and told him " don't worry." The plaintiff calculates past child support payments at $36,750. She also seeks reimbursement of 30% of work-related child care from 2005 through 2008 in the amount of $3,417.25. The plaintiff also requests ten percent interest on the monies owed and counsel fees.
The defendant testified that he received Excel spreadsheets, not bills, with regard to unreimbursed medical expenses. He made no attempt to obtain the bills and no attempt to pay his share of the expenses based upon the Excel spreadsheets. The plaintiff notified the defendant that their son required orthodontics and the defendant requested that the plaintiff obtain a second opinion. The plaintiff did so and the second opinion recommended orthodontics for their son. The defendant indicted that he had no desire to contribute as he did not believe his son required the braces. The total bill for the braces was $3,980; the defendant's share is $1,280.40. The defendant's share of other documented medical expenses is $377.85. His total liability is $1,658.25.
The court retained jurisdiction to enter post-secondary educational support orders. The plaintiff seeks a $7,000 contribution to their son's sophomore year at Keene State College. The tuition at Keene State is approximately $31,120. The defendant did not contribute to the child's freshman year. The first semester (approximately $17,000) was paid with funds gifted by the paternal grandmother. The second semester was paid primarily by the plaintiff and some monies remaining from the gifted funds. The parties' son is scheduled to commence his sophomore year this fall.
The defendant testified that he was not consulted relative to his son's decision to attend Keene State. His testimony is not credible. Rather, the defendant was provided with extensive emails concerning college selection and was afforded the opportunity to attend every college visit. He elected to attend two visits and participated no further.
The parties are gainfully employed although there exists a disparity in income between them. The plaintiff's net weekly income is $4,517 and the defendant's net weekly income is $1,182. The defendant owns a home with equity and has approximately $9,000 in debt. The disparity in income is one that existed at the time of dissolution.
DISCUSSION
Prior to a determination of contempt, it is necessary to set forth the meaning of civil contempt. " Contempt is a disobedience to the rules and orders of a court which has the power to punish for such an offense . . . If the underlying court order was sufficiently clear and unambiguous . . ." the issue is whether the violation was " wilful, excused by a good faith dispute or misunderstanding." Johnson v. Johnson, 111 Conn.App. 413, 420-21, 959 A.2d 637 (2008). " Under Connecticut law, such proceedings should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 318, 105 A.3d 887 (2014).
" Even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988). " The court has authority to order additional measures not contained in the original order if they are necessary to effectuate the original judgment." Behrns v. Behrns, 124 Conn.App. 794, 822, 6 A.3d 184 (2010) citing Roberts v. Roberts, 32 Conn.App. 465, 471-72, 629 A.2d 1160 (1993).
The defendant testified that he believed he was not required to pay child support due to a comment purportedly made by the plaintiff when she elected not to pursue a contempt. The fact that the plaintiff waited more than ten years before pursuing a motion for contempt lends some credibility to the defendant's argument. The comment, even if true, does not relieve the defendant from his obligation to pay child support in a timely fashion. In Nuzzi v. Nuzzi, 164 Conn.App. 751, 766, 138 A.3d 979 (2016), the court noted that " [o]ur Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order must be obeyed until it has been modified or successfully challenged." The court declines to find the defendant in contempt for the non-payment of child support.
The defendant was provided with proof of medical expenses and failed to pay them. He requested, and the plaintiff obtained, a second opinion relative to the necessity of orthodontic expenditure for their child. Defendant still declined to pay his share of the expense. The court finds the defendant in contempt for his willful failure to pay his portion of unreimbursed medical expenses.
Post-Secondary Support
The defendant testified that he is desirous of assisting with his son's education but does not have the funds to do so. He was willing to co-sign a student loan for his son. A review of the defendant's financial affidavit shows weekly entertainment expenses in the amount of $113 ($5,876 per year), vacation expenses of $61 ($3,172 per year), extraordinary travel expenses for visitation with his child in the amount of $96 ($4,992). These expenditures amount to over $14,000 per year. The defendant also owns, and thus is able to financially maintain, a boat and camper. The court finds that the defendant is able to contribute financially for his son's sophomore, junior and senior year absent a substantial change in circumstances.
ORDERS
1. The defendant shall pay the plaintiff child support at the rate of $84 per week until the arrearage is paid in full. No interest shall be assessed.
2. The defendant shall pay his share of unreimbursed medical expenses ($1,658) and work-related child care ($3,417) at the rate of $20 per week until paid in full. No interest shall be assessed.
3. The defendant shall contribute $5,000 for the post-secondary education of the parties' child payable at the rate of $100 per week.
4. The defendant shall pay to plaintiff attorneys fees in the amount of $1,000.
SO ORDERED.