Opinion
No. FA 01-0122042 S
March 3, 2005
MEMORANDUM OF DECISION MOTION FOR CONTEMPT, PJ #131
The marriage of the plaintiff, Michael K. Bliven, and the defendant, Cathryn E. Bliven, was dissolved by order of the court on March 6, 2002. The court ordered that the parties would have joint legal custody of the minor children, Chelsea, born May 17, 1989, Joshua, born April 27, 1991, Rachel, born May 5, 1994, and Jacob, born April 15, 1997, with the plaintiff having physical custody. The court entered an access schedule for visitation wherein the defendant would have visitation from Monday 6:00 a.m. until Wednesday 4:30 p.m. and other times as mutually agreed upon. The court also entered an order for support of the parties' minor children, whereby the defendant was to pay support to the plaintiff the sum of $68 per week, along with 17 percent of all day care costs.
The Child Support Guidelines presumptive amount was $77 and the $68 was a deviation based upon the access schedule.
Some time in August 2002, the parties reached an agreement without any judicial intervention which modified the dissolution judgment. The document entitled "Changes to Visitation Agreement" provided for physical custody to remain with the plaintiff consisting of Joshua, Rachel, and Jacob residing with the plaintiff and visitation with the defendant every other weekend. It further provided for the times of pick-up and drop-off, and also set forth a schedule for vacations and holidays. The agreement was silent as to physical custody of the oldest child, Chelsea, as well as any reference to child support or day care costs. (Defendant's Exh. 1).
The plaintiff filed a motion for contempt for the defendant's failure to comply with the original judgment ordering payment of child support and day care costs. He alleges that the plaintiff has failed to pay the court-ordered child support and day care costs since June 2003, and is in arrears in the amount of $4,284. The defendant claims that the parties had an oral agreement that she could stop paying child support and did so in June 2003.
The plaintiff raises the defenses of equitable estoppel and laches. The court will address each of these separately.
The test to determine whether a party should be equitably estopped from raising a claim is well established. "The doctrine of equitable estoppel prevents a party from asserting a legal claim because it would be unfair or inequitable to allow him to do so." Colvin v. Perkins, Superior Court, judicial district of New Haven, Docket No. FA 89 290355 (May 13, 1996, Alander, J.) ( 18 Conn. L. Rptr. 104). "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Bozzi v. Bozzi, 177 Conn. 232, 241, 413 A.2d 834 (1979).
"Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Citation omitted; internal quotation marks omitted.) W. v. W. 256 Conn. 657, 661, 779 A.2d 716 (2001).
Under our well-established law, any claim of estoppel is predicated on proof of "two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Union Carbide Corp. v. Danbury, 257 Conn. 865, 873, 778 A.2d 204 (2001). "An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party . . . the party claiming estoppel has the burden of proof . . ." (Citations omitted.) Herbert S. Newman Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 768, 674 A.2d 1313 (1996). "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995); Sablosky v. Sablosky, 72 Conn.App. 408, 414-15, 805 A.2d 745 (2002).
Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief inequity." Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn.App. 251, 262, 805 A2d 105 (2002). "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. (Internal quotations marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 486 n. 21, 717 A.2d 1177 (1998); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955).
"The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question . . ." Bozzi v. Bozzi, supra, 177 Conn. 239.
In Bozzi, the seminal case dealing with the defense of laches, the plaintiff wife remarried and moved with the parties' children to Holland and did not communicate with the defendant husband until one month after her arrival in Holland. The defendant took no action with regard to the custody and visitation of the children and ceased making child support payments. Approximately seven years later, the plaintiff wife returned to the United States after her separation from her new husband. She then decided to seek legal action to collect the support payments. The defendant argued that the plaintiff's failure to allow visitation suspended or terminated his obligation to support the children, and further raised the defenses of laches and equitable estoppel. He claimed that the lapse of eight or nine years was an unreasonable and inexcusable delay in seeking relief
The court found that there was no evidence found which disclosed prejudice to the defendant necessary to support a defense of laches . . . [T]he lack of any communication between the parties for about eight years, a lapse for which the defendant was at least equally responsible, might have been significant in supporting a claim of laches if there were any evidence that the defendant had changed his position in reliance upon an abandonment by the plaintiff of her claims against him." Id., 240. Lacking such evidence, the defense of laches could not be sustained.
"Issues of credibility obviously impact the application of the above principles." Hudyma v. Hudyma, Superior Court, judicial district of New London, Docket No. FA 0044464 (May 14, 1998, Solomon, J.) ( 22 Conn. L. Rptr. 204). In Hudyma, under a dissolution of marriage judgment, the defendant husband was ordered to make payment of alimony. The parties reached an oral agreement wherein the plaintiff stated "she didn't want the money," but at the hearing testified that she could not recall whether they actually talked about the alimony provision after the decree of dissolution entered. Eight years after the dissolution, the plaintiff then brought an action to enforce the alimony provision. The court, weighing the credibility of the parties, found the parties had in fact entered into an agreement and found the defenses of equitable estoppel, laches and waiver were established. Credibility was also a significant factor in Fiorita v. Fiorita, Superior Court, judicial district of Stamford/Norwalk, Docket No. FA 92 0126887 (August 7, 2000, Novack, Judge Trial Referee). In Fiorita, the minor children, by oral agreement of the parties, moved in with the defendant who ceased paying child support to the plaintiff. The court found the defendant had sustained his burden of establishing the defenses of equitable estoppel and laches as well as waiver.
In the present case, there is no credible evidence that the plaintiff ever told the defendant that he was agreeing to a suspension of the court-ordered child support payments. The agreement entered into by the parties made no mention of child support payments, but, merely by its title set forth changes in visitation and access. The court cannot find that the defendant was misled into changing her position in any way based upon the reliance of some conduct by the plaintiff. The defense of equitable estoppel has not been proven.
For laches to be proved, the defendant would have to show that the plaintiff's delay in filing a motion for contempt for her failure to pay child support caused her prejudice. Although it would appear that physical custody of Chelsea changed from the plaintiff to the defendant, there was no evidence that the plaintiff bringing a contempt motion fifteen months after the defendant stopped paying child support resulted in any prejudice. She was free at any time to file a modification of the child custodial arrangements as well as a modification of the child support payments. The defense of laches has not been proven.
In light of the court's findings that the defendant has no defense to the payment of child support, the court must determine whether or not the defendant is in contempt of the court's orders regarding the child support payments. "In order to constitute contempt, a party's conduct must be wilful . . . the contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind . . . A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within a trial court's discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001).
"Judicial discretion, however, is always a legal discretion, exercised according to the recognized principles of equity . . . Such discretion . . . imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Citations omitted; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 569-70, 783 A.2d 457 (2001).
The defendant unilaterally determined that she could suspend making child support payments. She claims that she believed she could suspend making those payments due to the changes set forth in the Changes in Visitation Agreement between the parties. The court does not find these claims credible. First, if the change occurred in August 2002, why did she wait until June 2003, to suspend the payments. Further, the changes in visitation were not of such a magnitude to reasonably conclude that child support would no longer be required to be paid. The court finds the defendant's action of nonpayment to be wilful and find the defendant in contempt of the court orders. The court orders the arrearage of $4,284 to be paid together with the existing child support order of $68 per week at the rate of $25 per week. The court further orders that the defendant pay attorneys fees in the amount of $500 within 30 days of this decision.
Swienton, J.