2005 Ct. Sup. 5976
No. FA 03 0081801 SConnecticut Superior Court Judicial District of Tolland at Rockville
April 6, 2005
MEMORANDUM OF DECISION
KLACZAK, JUDGE TRIAL REFEREE.
On March 24, 2005, the parties, both of whom were represented by counsel, appeared in court for trial as a limited contested dissolution of marriage case.
They filed a document with the Court entitled “Separation Agreement,” dated January 14, 2005 and stipulated that the agreement, including Articles I through XIV were not in issue, but they could not agree on the issues enumerated as items “a through f” of said document and listed on pages nine and ten under the heading “Other Issues.”
The Court makes the following findings and orders:
1. The parties intermarried at East Hartford, Connecticut on May 9, 1987.
2. The defendant’s maiden name was Audrey Souza.
3. The plaintiff has been a resident of the state of Connecticut for at least one year preceding the date of the complaint.
4. There are three minor children issue of the marriage, namely: Samantha Rae Zern, born April 1, 1991; Kaleigh Jane Zern, born July 27, 1993; and Zachary Thomas Zern, born April 4, 1997.
5. Neither party, nor any said child, has or is receiving financial aid from the state or local municipality therein.
6. The marriage has broken down irretrievably with no reasonable prospects for reconciliation. Judgment shall enter dissolving this marriage on the grounds of irretrievable breakdown. CT Page 5977
7. The terms and conditions of the separation agreement, including Articles I through XIV have been reviewed by the Court, together with the financial affidavits and testimonial evidence. The Court finds the terms and conditions of the agreement, through Article XIV, to be reasonably fair and equitable to both parties and orders that they be incorporated by reference into the decree of dissolution.
8. The order for child support ($260 weekly) is found to be in substantial compliance with the child support guidelines of $283 weekly.
The following discussion and orders are applicable to the issues in dispute, as set forth in the separation agreement.
a. Should the parties be ordered to exchange tax returns annually? The Court deems that to be a reasonable and frequently granted request. In this case, the husband has a history of working as a teaching chef at a culinary school. Testimony that his stated reason for quitting that job was that it “was no longer worth it” is troublesome. He held that part-time job for approximately four years at generally two nights per week. The guidelines contemplate calculating support at a maximum fifty-two hour week C.S.G. § (f)(1)(i). If he returns to that job, or if the wife’s day care business income changes, that could be the basis of a support modification.
The parties shall exchange complete tax returns annually by April 20th or within ten days of filing as long as they have a support obligation for their children.
b. Should the husband be obligated to contribute to the children’s extra-curricular activities such as camps, sports, and the like? The husband’s position is that the cost of these activities is included in the guideline support is undermined by the fact that the agreed child support, while within 15% of guideline computation is, nevertheless, $23.00 less than the presumptive support payment. The husband’s parenting access is fairly standard so there is little reason for the $23.00 difference. The Court also considers that the husband has chosen to reduce his income by giving up his part-time job.
As additional child support, the husband shall pay 50% of the childrens’ extra curricular activities such as camp, sports, CT Page 5978 cultural lessons such as art, dance, and other similar activities, however, his contribution shall be capped at not more than $90.00 per month. $90.00 per month is not a deviation from the support guidelines. The parties shall consult as to the children’s extra curricular activities but shall not unreasonably withhold approval. (It is the Court’s hope that the parties avoid conflict on this issue for the sake of their children and also to avoid unnecessary legal expenses).
c. Should cohabitation by the wife trigger a payment of the husband’s mortgage note and termination of alimony? The simple answer is no. Under article VI of the separation agreement, the parties have addressed the settlement of ownership of the marital home with a mortgage to the husband to compensate for his interest in the property. The wife’s proposal to address this issue is a reasonable one.
The Court orders that, in the event the wife cohabits with an unrelated male pursuant to § 46b-86(b) for a period longer than six months, she shall make a reasonably good faith effort to refinance the mortgage in order to remove the husband from any liability thereon, and to pay him any funds due him pursuant to Article VI of the separation agreement. If she is unable to obtain refinancing the original terms of Article VI shall apply.
d. Should the plaintiff (sic) be required to refinance the mortgage on the marital home within five years? The plaintiff (husband) wants the defendant (wife) to refinance the mortgage on the marital home within five years. The Court declines to so order. His interests are adequately protected by the separation agreement and the order in paragraph c. of this judgment.
e. Should either party be obligated to contribute to the other party’s legal fees incurred during this dissolution action? Given the limited financial circumstances of the parties, the Court orders that each shall be responsible for their own counsel fees.
f. Should the husband be obligated to maintain a $50,000 life insurance policy for alimony? There was no real evidence of the cost of such policy, but there was evidence that the husband does not have the financial ability to pay the cost of such a policy. The Court will not order him to do so.
OTHER: CT Page 5979
The wife seeks an order for payment of an arrearage of pendente lite orders. On March 29, 2004, the husband was ordered to pay $250 a week for child support and $100 for alimony pendente lite. In August of 2004, he began to make $300 weekly payments instead of $350 claiming he was unable to make the full payment.
In November 2004, the wife filed a Motion for Contempt which was not acted on. On December 23, 2004, the husband filed a Motion to Modify the Alimony Order, which also was not acted on.
In their separation agreement dated January 14, 2005 they stipulated there was an arrearage of $1950 which was to be deducted from the $10,000 mortgage from the wife to the husband on the marital home. Since then, the arrearage has grown to $50 per week (19 weeks x $50) for an additional $950. The husband argues that his Motion to Modify be granted retroactively to the filing date of December 23, 2004.
A modification of alimony can be made retroactive to the date of service of the motion. The Court has discretion to do so for equitable reasons. In this case the parties stipulated to an arrearage figure and a new alimony amount as of January 14, 2005. The husband believed this agreement was binding as to those terms. While the case was not tried until March, it appears likely, since there were several issues unresolved, that the parties were trying to negotiate those other issues, albeit unsuccessfully.
These facts are similar to those cited in Milbauer v. Milbauer, 54 Conn.App. 308 (1999). Under the facts of this case, given the agreement between the parties, the Court would have entered the $65 alimony order as of January 14, 2005 either in a judgment of dissolution or a modification. It would be inequitable to find the husband in contempt after the agreement was signed, or to find an arrearage. The wife has been getting the amount she agreed to.
The husband, does however, owe the wife $60 for unreimbursed medical expenses for the children and he is ordered to pay that amount within two weeks.
The financial orders (alimony and support) are to be enforced by a wage withholding order.
Klaczak, J.T.R. CT Page 5980
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