2003 Ct. Sup. 5502
No. FA64 9592 SConnecticut Superior Court, Judicial District of Tolland at Rockville
April 17, 2003
MEMORANDUM OF DECISION
KLACZAK, JUDGE TRIAL REFEREE.
The plaintiff, Faye Spencer Gray, whose present name is Faye Herrera, has filed a Motion for Contempt.
The parties were married on May 9, 1959. There was one child issue of the parties, James Gray, born November 11, 1959. The plaintiff commenced divorce proceedings in 1964 and on October 16, 1964, a judgment of divorce was entered in the Superior Court for the County of Tolland. The plaintiff was granted custody of the minor child and the defendant was ordered to pay $15.00 per week for child support and $7.00 per week as alimony, with payments to be made through the Family Relations Division.
In her Motion for Contempt, which was filed on September 26, 2002, the plaintiff claimed an arrears in both child support and alimony.
The most recent Connecticut activity in this case, prior to the present motion, was in 1967. On May 5, 1967, the divorce judgment was modified in this Court to terminate alimony as of December 7, 1966 because the plaintiff had remarried. Also, on May 5, 1967 this Court found the defendant was in arrears in payments of alimony and support in the amount of $2,124.00. A finding of contempt was also made.
The defendant was ordered to appear in Court on June 2, 1967 and on June 2, 1967, the defendant was found to be in compliance with the orders entered on May 5, 1967.
In 1968 the defendant moved to Maine. There was evidence of an interstate enforcement action in 1976 in Maine. A hearing on a petition for support was held in Alfred, Maine on May 17, 1976 and the matter was continued to November 1976 “due to the inability of the [defendant] to pay at this time.” (Exhibit B.)
In response to the present Motion for Contempt the defendant has raised the defenses of laches, equitable estoppel, accord and satisfaction and CT Page 5503 waiver. An evidentiary hearing was held on February 14, 2003 and counsel thereafter submitted post-trial briefs.
The parties stipulated that if any money is due the plaintiff from the time of the last court date of June 2, 1967, then the amount due from that date would be $10,249 (not including credits, if any to the defendant, or interest on the amount owed).
The elements of the doctrines of laches, waiver and equitable estoppel were recently discussed by our Appellate Court in Sablosky v. Sablosky, 72 Conn. App. 408 (2002).
Laches consists of an inexcusable delay which prejudices the defendant (as where for example, the defendant is led to change his position with respect to the matter in question). Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685 (1955).
Equitable estoppel also is predicated on two essential elements: (1) the plaintiff must do or say something that is intended or calculated to induce the defendant to believe in the existence of certain facts and to act upon that belief, and (2) the defendant, in reliance on those facts, must actually change his position, thereby incurring some injury.
Waiver is the intentional relinquishment of a known right . . . waiver need not be express but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so. (Sablosky, supra, p. 414.) Waiver does not require a showing of prejudice or detriment on the part of the defendant. Hudyma v. Hudyma, 22 Conn.L.Rptr. 204, Sup.Ct. New London JD, May 14, 1998 (Solomon, J.).
Under the circumstances of this case, the Court finds the defendant has met his burden of proving the plaintiff, by her inaction since 1976, impliedly waived or relinquished her right to support or alimony.
This conclusion is based in part on credibility issues and in part on undisputed facts.
The plaintiff argues that she has not sought to enforce the monetary orders for the past approximately 27 years because she did not know the defendant’s whereabouts, and also that she was unaware she could pursue past due child support once the child reached 18 years of age in November 1977. The credible evidence is not consistent with her claims.
The plaintiff herself testified “it was I think, ’76 or something” that CT Page 5504 her stepmother saw the defendant in a drugstore in Maine. Also, on June 2, 1976 the clerk of the Tolland County Superior Court sent the plaintiff a letter (Exhibit A) enclosing a copy of the Maine order which continued the support petition until October 1976.
The plaintiff also testified that the defendant came to Connecticut to visit his son when he was about 14 years old, which would have been about 1973.
Since 1968 the plaintiff has visited the defendant in Maine. Her testimony that she had only one contact with the defendant from 1968, which was the visit in Connecticut when their son was 14, is refuted by the evidence. She visited the defendant in Maine when she brought him patterns to use for his craft making. On those occasions when she visited the defendant in Maine she never asked him for money and their visits were generally cordial. The defendant’s brother saw her at the Maine home on two occasions and greeted her.
The defendant’s son (who is not the child issue of the parties) met the plaintiff at his father’s house in Biddeford, Maine in 1989 or 1990. The parties hugged each other on that occasion and acted friendly toward each other.
On another occasion in Maine, the plaintiff tried to get an apartment for a friend of hers through the defendant.
In fact there were multiple contacts between the parties after the defendant moved to Maine in 1968. There was no evidence that the plaintiff ever sought payments from the defendant on any of those visits which were invariably described as cordial and friendly.
This Court’s conclusion is further supported by the testimony of Anne Yarusewicz a support enforcement officer for the state of Connecticut.
A search of that office’s records showed that the case was opened October 16, 1964 and closed November 5, 1982. This information was contained on a file card. The case files themselves would have been shredded approximately seven years after the file was closed and in this case, that shredding was likely done in 1992. (See Exhibit 1.)
The only reason for closing a file would be payment in full or that the plaintiff requested that support enforcement close their services. Ms. Yarusewicz testified that inactivity in a file would not cause it to be closed. It might remain inactive in that case, but only the two specific reasons would cause a file to be closed. (In this case she could not say CT Page 5505 which of the two reasons — payment in full or request of the plaintiff) was applicable, but it seems fair to infer that it was not because of payment in full. (There was, however, no direct evidence suggesting that the plaintiff requested it be closed).
In summary, the plaintiff surely had to know she had a right to have the financial orders of the Court enforced. She knew the whereabouts of the defendant even after he moved to Maine in 1968 where she visited him on multiple occasions, yet never asked for money or sought to enforce the orders. The last attempted enforcement action was though the support enforcement division in 1976 and she took no further action for the next 26 years or so.
These facts and circumstances support a finding of implied waiver.
The Court does not find the defenses of laches and equitable estoppel to be applicable or persuasive in this case.
Both doctrines require the defendant to somehow change his position as a result in the case of laches, an inexcusable delay and, in the case of equitable estoppel, some act on the part of the plaintiff intended to induce a belief in certain facts, and both doctrines require harm to the defendant as a result.
The mere lapse of time is not, in and of itself, laches. The defendant claims the detriment to him after these many years is that he cannot find any records of payments he did make and has no recollection of the amounts. It does not appear that the amount was significant since they stipulated to $10,249 if the plaintiff prevailed. Other than having no records there was no other evidence of detriment or harm to the defendant.
The “accord and satisfaction” defense is not persuasive as a defense. In approximately 1967, the defendant (who was a carpenter) did work on the plaintiff’s house in Vernon. This was about the time she married Mr. Herrera and was done at the plaintiff’s request. The work included a small porch, shelving, some painting and work on the “Rec” room.
The plaintiff testified she paid him $500 for the work (but has no documentation) and the defendant claims that he received no money, but negotiated to do the work in lieu of past and future support. Whatever happened neither position seems plausible.
It makes no sense that the plaintiff would pay $500 during a period when the defendant was not paying child support and in arrears. Nor is it CT Page 5506 tenable that the plaintiff would negotiate $500 worth of home improvement service as an accord and satisfaction for past and future child support (as well as alimony) for a then seven or eight year old child.
For the foregoing reasons, the plaintiff’s Motion for Contempt is denied and because of the doctrine of waiver, there is no arrearage imposed.
Klaczak, JTR CT Page 5507