2006 Ct. Sup. 16988
No. FA 04-0735441 SConnecticut Superior Court Judicial District of Hartford at Hartford
September 15, 2006
MEMORANDUM OF DECISION
JORGE A. SIMON, JUDGE.
This matter comes before the court on plaintiff’s motion for contempt and the defendant’s continuing motion for modification of court-ordered child support and alimony. The court heard testimony over the course of a full afternoon on September 11, 2006. The court observed the demeanor of, and evaluated the testimony and credibility of witnesses, to wit, Bakhos Abou-Francis and Katia Saroufim. Plaintiff’s counsel has filed proposed orders. In addition the court reviewed and considered the exhibits, sworn affidavits, claims for relief and closing arguments.
The court has considered carefully the statutory criteria inter alia, in General Statutes §§ 46b-86, 46b-87, as well as the applicable case law in reaching the decisions reflected in the orders that issue in this decision.
PROCEDURAL HISTORY
By complaint dated January 29, 2004, plaintiff commenced this action for dissolution of marriage and other relief. A judgment of dissolution was entered by the court, Prestley, J. on November 19, 2004. Incorporated into the judgment were orders providing for alimony and child support. The judgment provides that the defendant pay child support in the amount of $340 per week; that he pay alimony in the amount of $180 per week for six years, modifiable at death, remarriage, co-habitation, or a substantial change in circumstances; that he is responsible for 60% of child care expenses; 60% of unreimbursed medical, dental, optical and orthodontic expenses for the children. Furthermore, he is to cover the health insurance needs of the children and the plaintiff as available through his employment.
On February 10, 2006 the defendant husband filed a postjudgment CT Page 16989 motion to modify child support and alimony orders based on loss of employment. Subsequently plaintiff wife filed a motion for contempt.
On March 21, 2006 the court, Prestley, J., after hearing evidence granted the defendant husband’s motion for modification; reducing child support to $275 per week and alimony to $100 per week temporarily to be reviewed in 6 weeks. The court further ordered the defendant husband to pay $2,036 in arrearage; that upon obtaining employment he resume payments of child support and alimony as set forth in the November 19, 2004 judgment. Finally, the court ordered that upon obtaining employment the defendant husband shall notify plaintiff wife of the name of employer, position and salary.
Subsequent hearings were held on April 17th, May 2nd, June 6th and July 18th at which the various judges admonished the defendant to provide evidence of credible search for employment and that if such evidence was not forthcoming, the court would vacate the temporary modification orders and reinstate the full arrearage from March 21st, 2006.
On August 15, 2006, Judge Epstein appointed counsel on behalf of the defendant father and continued the matter to September 11th.
FACTS AND DISCUSSION
Firstly, in her motion for contempt, the plaintiff alleges that the defendant is in arrears and therefore contempt for child support and alimony in the amount of $3,770. This figure represents the difference between what the defendant would have paid from March 21, 2006, the date of the original modification order, to the present, were this court to vacate the temporary modification order, as requested by the plaintiff due to defendant’s lack of providing the court with notification of his legitimate attempts to obtain employment and as ordered by subsequent courts.
No credible evidence was presented to contradict the defendant’s testimony that he was laid off in January 2006, from a position where he earned approximately $70,000 per year. The defendant has received unemployment benefits based on his termination. The defendant did not voluntarily leave his position. He has made over 60 inquiries regarding new employment. CT Page 16990 He has gone to numerous interviews. Jobs in his area of specialty, training and paying $70,000 are not common. The defendant has had to lower his expectations. The defendant has obtained employment that commenced on September 5, 2006 and pays him approximately $47,000 per year. The defendant also earns approximately $150 per week from rental property.
Allegations that the defendant purchases gifts for the children and takes them along on visits to the casino rather than paying for court-ordered obligations, although of concern to this court, are similar to those raised by the plaintiff at the March 21st hearing. The defendant has testified that his brother is the source of those gifts and trips. Having read the transcript of the March 21st hearing and listening to the testimony presented by the parties during the September 11th hearing, this court cannot find that those allegations are substantiated by the evidence and therefore are not a basis for a finding of contempt.
Secondly, the plaintiff requests, that if the court determines that defendant has started a new job at a salary less than $70,000, that the March 21, 2006 modifications be vacated and that this court reinstate the weekly November 19, 2004 judgment figures of $340 for child support and $180 alimony payment effective as of March 21, 2006. The plaintiff further requests that said payments begin from the time he accepted the new position, i.e. August 18, 2006, and not from when he actually started working, September 5, 2006, and receives his first salary payment. In other words, the plaintiff would ask the court to construe Judge Prestley’s order to read that the defendant’s obligations reverted to the November 19, 2004 pre-modification judgment figures on the date that he signed the employment agreement.
This court reads Judge Prestley’s order in a common sense interpretation that “getting a job” means “getting paid”. To read it as the plaintiff asks, would mean that his obligations would increase while awaiting the start of his employment, while no income is forthcoming. Furthermore, if that were the case the court would also have to interpret Judge Prestley’s comments as allowing the defendant’s obligations to remain the same if he obtained a position that paid him more than what he was earning at the time of the November 19, 2004 judgment orders. That outcome could not have been contemplated by the court.
Thirdly, the plaintiff requests attorney fees in the amount of CT Page 16991 $2,500 for having to bring this action. This motion was filed on September 11, 2006. The defendant knew that he had accepted a new position on or about August 18, 2006. The defendant was under an order, to advise the plaintiff of new employer, position and salary, by Judge Prestley dated March 21, 2006. Although the defendant subsequently told the plaintiff he had a job, he refused to tell her any of the above-ordered information.
Pursuant to § 46b-87 of the Connecticut General Statutes the court can order attorney fees in a motion for contempt.
The evidence presented to the court is clear and convincing that a valid order existed and that it was violated. For a person to be adjudged in contempt of court, the court must also find that the contemptor’s actions constituted a willful and deliberate disobedience of a court order. Mere failure to comply with a court order is not sufficient. Bryant v. Bryant, 228 Conn. 630, 637 (1994). The defendant, during his testimony, admitted to not providing the ordered information to the plaintiff. No valid reason was given for not sharing the information. Based upon all the evidence, the court finds that this motion would not have been pursued but for the defendant’s lack of cooperation. The defendant’s actions do constitute a willful disobedience of the court orders.
Note that in the alternative, the court, under its equitable authority in contempt proceedings, even in the absence of a find of contempt, has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with court orders. Kronholm v. Kronholm, 23 Conn.App. 577, 579
(1990).
Finally, as to the defendant’s motion for modification of child support and alimony, “It is well settled in Connecticut that a modification . . . is not warranted unless there has been a substantial change in the circumstances of either party, occurring subsequent to the entry of the original decree, and not contemplated by the parties at the time.” Noce v. Noce, 181 Conn. 145, 147-48 (1980).
The defendant was terminated from his previous employment. The defendant has obtained new employment. He has submitted a new financial affidavit. The plaintiff has also obtained employment and has submitted her financial affidavit. During the course of the hearing the court had the opportunity to allow both parties CT Page 16992 to present evidence regarding their new positions and review the respective financial affidavits. The defendant’s prior employment was for $70,000 per year. His new position pays approximately $47,000 per year, a difference of $23,000. The plaintiff is now employed as a teacher’s assistant in Suffield earning $485 per week. At the time of the original judgment the plaintiff was not employed. Having reviewed the exhibits submitted by the defendant the court is satisfied that he has diligently sought employment in the area of his expertise. His unemployment benefits have expired. He has accepted a new position within his area of expertise at a substantial pay cut. No evidence was presented that he voluntarily turned down better paying positions to intentionally reduce his obligations to his children and ex-wife. A substantial change of circumstances has been shown by clear and convincing evidence.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. Defendant husband is not in contempt for lack of a diligent job search.
2. The defendant’s alimony payment is reduced to $120 per week. His child support payments are reduced to $250 per week pursuant to the child support guidelines. Said modifications are effective from receipt of his first pay. Said payments are subject to an immediate wage withholding. Defendant must sign the advisement of rights regarding income withholding. Said orders are contingent upon verification of salary and withholdings as indicated in the defendant’s financial affidavit. The defendant must continue to pay the plaintiff said obligations personally, until the wage withholding is actually taken from his pay check.
3. Defendant is not in arrears as to child support and alimony.
4. The defendant husband is in contempt for failure to advise wife of his new employment, position and salary as ordered by the court on March 21, 2006. The court therefore orders that he pay legal fees for bringing this action in the amount of $2,500, sum to be paid prior to October 5, 2006.
5. All other court orders from November 9, 2004 remain in effect including defendant’s obligation to pay plaintiff $1,000 each August 1st to assist in paying for the children’s school CT Page 16993 clothing and supplies.
6. Defendant’s obligation to pay child care expenses, unreimbursed medical, dental, optical and orthodontic expenses is reduced to 36%.
7. Defendant must keep plaintiff advised as to all changes of employment, salary increases, bonuses as earned and profit sharing opportunities.
8. All orders are effective immediately.
The matter is continued for compliance to October 10, 2006.
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