Opinion
No. FA 84 0232178 S
December 14, 2010
MEMORANDUM OF DECISION
The marriage of the plaintiff, David Hall, and the defendant, Kathleen Hall, was dissolved on October 2, 1985, and the defendant was awarded custody of their two minor children, born in 1982 and 1984. The dissolution judgment provided that the plaintiff was to pay $35 per week per child as a current order and $10 per week on an arrearage of $1,600 that had accumulated prior to the judgment of the dissolution. Once the arrearage was paid in full, the order would be increased to $40 per week per child.
On August 3, 2010, the defendant filed a motion for contempt on the following grounds: (1) the plaintiff has not paid her $1,000 from the property settlement; (2) the plaintiff has not paid any child support, amounting to $75,720; (3) she was not able to locate the plaintiff until recently; and (4) the department of revenue child support enforcement division in Massachusetts was never able to locate the plaintiff. A hearing on the defendant's motion for contempt was held on September 22, 2010. At the conclusion of the hearing, the court ordered the parties to submit briefs to the court on the issues of laches and interest by October 13, 2010. Both parties submitted supplementary briefs. Oral argument was heard on October 20, 2010.
DISCUSSION I
"Contempt can be civil or criminal in nature . . . [A] contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public . . . A civil contempt can involve a wilful failure to comply with a then outstanding court order." (Citations omitted, internal quotation marks omitted.) Marcil v. Marcil, 4 Conn.App. 403, 404-5, 494 A.2d 620 (1985). "Contempt proceedings are a proper means of enforcing a court order of child support. Unlawful failure to pay court-ordered child support as it becomes due constitutes indirect civil contempt." (Citations omitted.) Mulholland v. Mulholland, 31 Conn.App. 214, 220, 624 A.2d 379 (1993), aff'd, 229 Conn. 643, 643 A.2d 246 (1994).
The defendant argues that the plaintiff is in contempt of court because he violated the court order regarding child support and that the defense of laches is inapplicable to the facts in the present case. The defendant maintains that any delay is not inexcusable because she was unable to find him until recently. Furthermore, she argues that her actions have not prejudiced the plaintiff since he never changed his position as to making any child support payments. In response, the plaintiff counters that the facts and the evidence indicate that, "as a matter of law, the doctrine of laches applies in the present case." He asserts that the defendant's delay of twenty-five years before bringing a motion for contempt supports his position that he relied on her abandonment of the claim against him and, as a result, the defendant has waived her right to bring this claim. The plaintiff further contends that he has been prejudiced in that he now has an arrearage of thousands of dollars for which he did not plan and his second family will suffer because of this arrearage. Lastly, he argues that his actions were not wrongful because he believed that the child support order had been modified and, therefore, he no longer was obligated to make any payments.
A. Contempt
"In a civil contempt proceeding, the movant has the burden of establishing by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, 772 A.2d 681 (2001). "The fact that [an] order [has] not been complied with fully, however, does not dictate that a finding of contempt must enter. 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." Marcil v. Marcil, supra, 4 Conn.App. 405; Meehan v. Meehan, 40 Conn.App. 107, 110, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). Moreover, "while a wife's long delay in attempting to enforce [support] payments does not destroy or affect the obligation of the husband to obey the order of the court, such delay is properly to be considered in determining whether a husband should be held in contempt for failure to pay." Piacquadio v. Piacquadio, 22 Conn.Sup. 47, 50, 159 A.2d 628 (1960).
The plaintiff in the present case testified to the following at the September 22, 2010 hearing: The defendant would not allow him to visit the children and as of the date of the hearing, the plaintiff had still never seen his son who was nearly 26 years old. During his last conversation with the defendant, he indicated that he would no longer pay child support unless he received visitation with his children. Furthermore, he did not have any contact with the defendant until the contempt proceedings began this year. In his brief, the plaintiff points out that the defendant did not file any motion alleging his "wilful failure to pay alimony and child support" until 2010, which he claims constitutes an unreasonable delay. Although it is uncontested that the plaintiff failed to comply with the child support order for twenty-five years, his noncompliance does not necessitate that the court hold him in contempt of court.
B. Special Defenses of Waiver and Laches
Because the court need not find a party in contempt in order to mandate compliance with a court order; Fuller v. Fuller, 119 Conn.App. 105, 112, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010); the court must next consider whether the defendant's entitlement to arrearage is barred by the special defenses raised by the plaintiff. "[T]he trial court's continuing jurisdiction to effectuate its prior judgments . . . by summarily ordering compliance with a clear judgment . . . is grounded in its inherent powers, and is not limited to cases wherein the non-compliant party is in contempt, family cases, cases involving injunctions, or cases wherein the parties have agreed to continuing jurisdiction." (Internal quotation marks omitted.) Id. "In a contempt proceeding, 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. Such court action, however, must be supported by competent evidence." Nelson v. Nelson, 13 Conn.App. 355, 367, 536 A.2d 985 (1988). A party seeking arrearage, however, may be barred from doing so if "the right to [arrearage is] abandoned . . . [or] by . . . laches a [party is] barred from the equitable aid of the court . . ." (Citations omitted.) Piacquadio v. Piacquadio, supra, 22 Conn.Sup. 50. "[T]he defenses of laches, equitable estoppel and waiver regularly are raised by parties . . . contesting the recoupment of alimony and support arrearages." Fromm v. Fromm, 108 Conn.App. 376, 384, 948 A.2d 328 (2008).
As to waiver, the plaintiff asserts that the defendant failed to bring a claim for arrearage for twenty-five years. "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." (Internal quotation marks omitted.) Kalinowski v. Kropelnicki, 92 Conn.App. 344, 352-53, 885 A.2d 194 (2005). The court is likely to find that waiver has occurred when the moving party has accepted reduced payments for a period of time with no objection. See DiBiaso v. DiBiaso, 17 Conn.Sup. 483, 484 (1952). The party asserting waiver, however, must present evidence such that the court can infer waiver from the circumstances. Kalinowski v. Kropelnicki, supra, 353.
Notwithstanding the defendant's lack of pursuing contempt charges until 2010, the plaintiff has provided no evidence or testimony that the defendant explicitly or implicitly agreed to accept the plaintiff's assertions not to pay child support nor indicated that she would not pursue child support owed to her. Rather, the plaintiff testified that during their last conversation he presented the option of cessation, not reduction, of child support payments. As a result, the plaintiff has not met his burden of showing that the defendant waived her right to claim child support payments.
The plaintiff also claims that the defendant's delay in bringing this action is barred by laches. Laches "bars [a party] from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the [opposing party]. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the [opposing party] . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Citations omitted, internal quotation marks omitted.) Fromm v. Fromm, supra, 108 Conn.App. 385-86. See Burner v. Burner, 59 Conn.App. 593, 596-97, 758 A.2d 373 (2000) (holding that without admissible evidence, mere fact that plaintiff waited two decades to assert claim for arrearage was not sufficient for finding of inexcusable delay). Hence, even if the court determines that there was an inexcusable delay by the moving party, the court will not find that party guilty of laches if the prejudice to the opposing party was not the result of the moving party. See, e.g., Papcun v. Papcun, 181 Conn. 618, 621, 436 A.2d 282 (1980) (finding that plaintiff was not guilty of laches even though she waited nine years to bring contempt action because it was not plaintiff's failure to collect court-ordered payments that led defendant to remarry and incur debt); Bozzi v. Bozzi, 177 Conn. 232, 240, 413 A.2d 834 (1979) (holding that even though plaintiff waited eight or nine years to bring contempt action, she was not guilty of laches where there was no evidence that defendant changed his position in reliance upon abandonment by plaintiff of her claim against him); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955) (declining to discuss whether lapse of twenty-five years before commencement of plaintiff's suit was inexcusable since there was no evidence to suggest that delay prejudiced the defendant). But see Fromm v. Fromm, supra, 108 Conn.App. 387 (plaintiff was prejudiced because "the defendant deliberately made it impossible for the plaintiff to comply with his alimony and support obligations").
In the present case, there was a delay by the defendant in bringing the motion for contempt. No evidence was properly submitted, however, explaining the reason for the delay. Thus, because the court cannot "properly rely on argument by the [plaintiff's] attorney or on matters not in evidence;" Burner v. Burner, supra, 59 Conn.App. 596-97; the court cannot make a finding that the delay was unreasonable and inexcusable.
Moreover, the plaintiff has presented no evidence that the defendant's actions caused him any prejudice. The plaintiff unilaterally decided not to pay child support despite the fact that he knew where the defendant resided and how to contact her. The plaintiff chose not to seek out the defendant to fulfill his child support obligations or to modify the court order when he began a new family. Thus, it was the plaintiff's own voluntary decisions and not the defendant's inaction that led to the change in his position. Therefore, the defense of laches is inapplicable to the circumstances in this case.
Because the plaintiff has not proven either of his special defenses, the defendant is entitled to arrearage.
II
Since the defendant has a rightful claim for arrearage, the court must now address whether she is entitled to an award of statutory interest. "[T]here is no statutory prohibition against awarding interest on a judgment in domestic relations cases . . ." LaBow v. LaBow, 13 Conn.App. 330, 353, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); and the court can award interest under General Statutes § 37-3a on arrearage due without a finding of contempt. Kronholm v. Kronholm, 16 Conn.App. 124, 133, 547 A.2d 61 (1988); see Sosin v. Sosin, CT Page 1239 109 Conn.App. 691, 706, 952 A.2d 1258, cert. granted on other grounds, 289 Conn. 934, 958 A.2d 1245 (2008) (court's denial of contempt does not prohibit finding of wrongful detained payment). Thus, "[t]he trial court has the discretion to decide whether to make an award of interest under General Statutes § 37-3a . . . and discretion respecting the manner in which an arrearage shall be paid." (Citation omitted; internal quotation marks omitted.) Crowley v. Crowley, 46 Conn.App. 87, 96, 699 A.2d 1029 (1997).
Section 37-3a provides in relevant part: "[I]nterest . . . may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . ."
The statute has been construed "to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances . . . The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court." (Internal quotation marks omitted.) McCullough v. Waterside Associates, 102 Conn.App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007). "Before awarding interest [under § 37-3a], the trial court must ascertain whether the [party against whom interest is sought] has wrongfully detained money damages due the [aggrieved party] . . ." (Internal quotation marks omitted.) Sosin v. Sosin, supra, 109 Conn.App. 703. Nevertheless, "[t]he determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of any arbitrary rule." (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn.App. 75, 85, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).
"The determination of whether a retention was wrongful is inherently fact bound, and reviewing courts permit lower courts to evaluate the unique facts of each case in exercising their discretion to award or to disallow interest under § 37-3a . . . This court has observed that a party's burden of demonstrating a wrongful detention of payment `requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful . . . Although bad faith is one factor that the court may look at when deciding whether to award interest under § 37-3a, we note that, in the context of the statute, "wrongful" is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so.'" (Citations omitted; emphasis in original.) Sosin v. Sosin, supra, 109 Conn.App. 704. Moreover, the court can consider whether the award of interest would be unjust or inequitable. See CT Page 1240 McCullough v. Waterside Associates, supra, 102 Conn.App. 33 (because court stated reasons for denying request or interest, it was not necessary that trial court expound further on its reasoning that an award of interest would be "unjust and unconscionable"); Loomis Institute v. Windsor, 234 Conn. 169, 181-82, 661 A.2d 1001 (1995) (noting that trial judge may reasonably have concluded that award of interest under § 37-3a might not be equitable when it stated in response to motion for articulation that interest had been denied "in [the court's] discretion").
The defendant argues that an award of interest would be just in the present case based on the plaintiff's admission that he unilaterally stopped making child support payments because he was unhappy with his visitation. The plaintiff counters that his failure to pay child support was justified based on the circumstances. He believed that he was not legally obligated to make payments and that his withholding was justified under the financial orders set forth in the dissolution agreement.
In the present case, the court has determined that the defendant is entitled to child support arrearage. While the plaintiff did unilaterally refuse to make support payments, it was based on his erroneous, but good faith, belief that he was not obligated to do so. Thus, based on the testimony in the present case, the court cannot make the requisite factual finding that the withholding was wrongful. Moreover, given the substantial delay of the plaintiff in bringing the present action, despite the fact that the plaintiff has been employed by the same company for thirteen years, lived in the same house for nineteen years and held a commercial driver's license for over twenty years, it would be inequitable to award interest in this case.
CONCLUSION
For the foregoing reasons, the defendant's motion for contempt is denied. Further, the plaintiff owes the defendant arrearage on the unpaid child support for the past twenty-five years, but the court will not award statutory interest.