Opinion
FA020125293
10-30-2018
Karen Fusaro v. James A. Fusaro
UNPUBLISHED OPINION
File Date: October 31, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Shluger, Kenneth L., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR CONTEMPT (202), DEFENDANT’S MOTION TO MODIFY SUPPORT OBLIGATION (202.50), AND OBJECTION TO APPLICATION FOR CONTEMPT AND REQUEST TO SET ASIDE OR OFFSET ARREARAGE (201)
Shluger, J.
A review of the record reveals that the parties were divorced following a trial with a memorandum of decision dated April 23, 2004. Said judgment provided, inter alia, that "the plaintiff shall pay to the defendant the sum of $10,000 from the proceeds of the refinancing of the residence or other sources, but no later than 30 days from the date of the judgment. It is further ordered that the plaintiff shall execute a mortgage note and deed payable to the defendant in the amount of $40,000 to be paid upon the sooner of the following occurrences ..." One of such conditions was the plaintiff’s refinancing the residence. Said judgment further held that the defendant was to pay to the plaintiff child support in the amount of $235 per week.
The parties appeared before the undersigned on October 12, 2018. Both parties were represented by counsel. At the conclusion of the hearing, the parties were given until October 28, 2018, to submit briefs in support of their positions.
FACTUAL FINDINGS
The court has fully considered the appropriate sections of Connecticut General Statutes as well as the evidence, applicable case law, the demeanor and credibility of the witnesses, and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.
There are a number of questions presented to the court in this complex scenario including:
1. Is the plaintiff in contempt of court for wrongfully utilizing the defendant’s dependency tax exemptions? If so, what sanction, including attorneys fees, should apply?
2. What is the amount of child support due and owing to the plaintiff? Should the defendant be credited with the cash payments he claims he made? Should the arrearage found by the Support Enforcement Division be extinguished? What weight, if any, should the court give to the oral agreement of the parties to modify the child support in 2016 without court approval? Can the court retroactively modify the child support order?
3. Should the Social Security stipend received by the plaintiff as a result of the defendant’s disability be credited against the child support owed by the defendant?
4. Is the plaintiff in contempt of court for failing to pay the $40,000 property settlement ordered in the judgment?
The court finds that the following facts were proven by the appropriate standard of proof:
1. All motions were consolidated and transferred to the Superior Court to be heard on October 12, 2018 (205).
2. As a result of the judgment of dissolution, the plaintiff was ordered to pay to the defendant $10,000 within 30 days of the judgment.
3. As a result of the judgment of dissolution, the plaintiff was ordered to pay to the defendant the sum of $40,000 upon the refinancing of the marital residence.
4. It is undisputed that the plaintiff paid to the defendant the sum of $10,000 as required.
5. It is undisputed that the plaintiff refinanced the marital residence on January 11, 2007.
6. The plaintiff claims that she paid the defendant the $40,000 as required but is unable to furnish any proof. She simply assumes that he must have been paid when she refinanced the residence in 2007.
7. The defendant denies that he received the $40,000, and the court finds his denial to be credible and proven.
8. On August 23, 2010, the defendant filed a motion for contempt (166) alleging that the plaintiff never paid to him the $40,000 ordered in the judgment.
9. On November 30, 2010, the court, Vassington, J., ruled that "the court finds that the plaintiff still owes the defendant $40,000."
10. The court finds that the defendant is due the $40,000.
11. On February 18, 2016, the parties appeared in court, without the benefit of counsel, as the defendant was attempting to modify downward his court-ordered child support (192). At the time, he was recovering from a total hip replacement of both hips and their elder child had reached 18 and was no longer in high school.
12. On that date, the parties met with a Family Relations Officer relative to the defendant’s motion to modify downward his child support. It was explained that the plaintiff would soon be receiving a Social Security Disability stipend for the benefit of the remaining minor child in the amount of $619.20 per month. It is unclear if the parties reached an agreement that the child support would simply terminate, but both parties left the courthouse without ever going before a judge. The child support order of $235 per week was never formally modified by the court.
13. From March 1, 2016 until June 2018, the plaintiff was receiving the Social Security stipend in the amount of $619.20 per month and no child support from the defendant. These 28 months of payments total $17,338, which will serve as a credit against the defendant’s child support obligation. She never filed a motion for contempt to enforce the child support order. In response to a question from the court, she claimed that she did not complain because she was afraid of the defendant, notwithstanding the fact that she filed at least two other motions for contempt.
14. On June 11, 2018, the Support Enforcement Division (SED) found that there was an arrearage of child support from the defendant in the amount of $53,769.10 and filed a Notice of Claim (194) in that amount. The plaintiff filed an affidavit with SED (exh. I) dated March 27, 2018, documenting said arrearage. In said affidavit, she claimed that there was a child support shortfall in 2010 of $4,230, a shortfall in 2011 of $6,580, a shortfall in 2012 of $5,640, a shortfall in 2013 of $8,440, a shortfall in 2014 of $4,700, a shortfall in 2015 of $940, a shortfall in 2016 of $11,985, a shortfall in 2017 of $12,220, and a shortfall in 2018 of $3,760. This affidavit is in direct contradiction with the plaintiff’s motion for contempt dated November 30, 2010 (178) claiming that the defendant is behind on his child support by only two weeks. This affidavit is in direct contradiction with the defendant’s credible testimony and his ledger detailing his payments (exh. N).
15. Said judgment further provided that the defendant would take one child as a dependency exemption, and the plaintiff would take the other. Notwithstanding, the plaintiff claimed both dependency exemptions in 2010, 2011, 2012, 2013, 2014, 2015, and 2016, receiving tax refunds for each year. The plaintiff also took the tax dependency exemptions for 2004, 2005, 2006, 2007, and 2008, but it is unclear if she got a refund and if so, in what amount. The defendant claims that he is entitled to a percentage of the plaintiff’s tax refunds for those years, although there was no evidence as to what the benefit was to her in claiming those deductions. The defendant presented a printout from Wikipedia (exh. H) suggesting that the court could compute the value of the dependency exemptions which benefited the plaintiff. The court declines to do so. Without expert testimony, it would be mere speculation to try to reconstruct why the plaintiff received a tax refund each year. It could have been due to the exemption in whole or in part, and it could have been due to other reasons. Likewise, the court cannot speculate as to the value of the exemption to the defendant which he failed to receive. The court finds by clear and convincing evidence that the plaintiff is in contempt of court for wrongfully utilizing the defendant’s tax dependency exemptions. The order contained in the judgment was clear and understandable, there was a violation, and the violation was willful.
16. The defendant offered into evidence a comprehensive ledger (exh. N) as to his child support payments from January 2010 until present. The defendant testified that he paid to the plaintiff cash child support in the amount of 26 payments at $235, or $6,110, which the court does not credit as proven.
17. The defendant’s Social Security benefits were garnished by the SED in May 2018 for three months at the rate of $535.90, for a garnishment of $1,607.70.
18. The parties agreed that as of 2010 the child support was current.
19. Between 2010 and June 22, 2018 when the youngest child turned 18, the accrued child support, at the rate of $235 per week, was $103,870.
20. The court finds the defendant’s testimony and backup documentation credible that he paid $74,025 from 2010 to 2016. The court finds further that $1,607.70 was garnished from the defendant’s SSD. The court finds further that the plaintiff received a SSD stipend for the child of 28 months at $619.20 per month, or $17,338.
21. The court declines to retroactively modify the child support order back to 2016. Therefore, the court finds that the defendant has an arrearage of $10,899.30.
LEGAL DISCUSSION
In Jenkins v. Jenkins, 243 Conn. 584 (1998), the court addressed the issue of "whether Social Security dependency benefits received pursuant to the Social Security act ... by the minor children of the disabled plaintiff ... that are credited toward the amount of the plaintiff’s child support obligation should also be included in his gross income in determining that obligation ..." Id., 585-86. The court concluded that Social Security benefits are appropriately characterized as earnings of the contributing parent. They are not gratuities but are earned and a substitute for lost earning power because of the disability. The court in Jenkins, supra, went further and concluded that said benefits should be credited as child support payments by the noncustodial parent. Subsequently, the court in Tarbox v. Tarbox, 84 Conn.App. 403 (2004) citing Jenkins, supra, ruled "it is without question that under certain circumstances, a parent’s child support obligation may be fulfilled in whole or in part by dependency benefits paid on behalf of a minor child."
Thus, the Social Security dependency benefits stipend received by the plaintiff from 2016 to 2018 shall be credited toward the defendant’s obligation.
When the parties appeared in court relative to the defendant’s motion to modify child support, they never formalized the process or went before a judge. For whatever reason, they left the courthouse and the defendant ceased paying child support. There are many reasons why appearance before a judge is required. A judge must review the terms and conditions of any agreement and find that the agreement is fair and in the child’s best interest. This was not done.
A party may not engage in self-help and must obey a court order until it has been modified. An order of the court must be followed until it has been modified or otherwise successfully challenged. Parties are not permitted to engage in self-help but are bound to follow the orders of the court. A party should avoid self-help and seek judicial assistance when a modification of a court order is necessary. In this case, the defendant failed to formalize his motion to modify the court’s orders of child support. As such, the order remained in place. Culver v. Culver, 127 Conn.App. 236, 242 (2011), Behrns v Behrns, 124 Conn.App. 794 (2010). While the defendant will not receive a retroactive modification of his child support obligation, he will receive a credit for the Social Security stipend paid to the plaintiff.
"[T]he trial court has the discretion to decide whether to make an award of interest under General Statutes § 37-3a which ... provides for interest on money detained after it becomes due and payable ... [T]here is no statutory prohibition against awarding interest on a judgment in domestic relations cases ... because the courts may fashion remedies that are appropriate and equitable ... The question of whether ... interest is a proper element of recovery ordinarily rests upon whether the detention of money is or is not wrongful ..." Picton v. Picton, 111 Conn.App. 143, 155-56, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009). McKenna v. Delente, 123 Conn.App. 146, 163 (2010). In this case, the court declines to award interest as the defendant took no steps for many years to enforce this right to the $40,000, which was due to him.
Civil contempt in family matters is governed by practice book section 25-27. "Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." In re Leah S., 284 Conn. 685, 692 (2007). The movant has the burden of proof to show ... the existence of a court order and noncompliance with that order. Isler v. Isler, 50 Conn.App. 58, 66-69 (1998). "Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 1 (2001). Moreover, "a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful." Wilson v. Wilson, 38 Conn.App. 263, 275-76 (1995).
In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt. The court must find that there was a violation of said order and that the violation was willful. Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding. In re Leah S., 284 Conn. 685, 693-94 (2007).
ORDERS
1. The plaintiff shall pay to the defendant $40,000 for the property settlement.
2. The motion to modify child support, which was filed in 2016 and never ruled on, is granted and the court terminates the child support order. The court will not make said order retroactive.
3. The motion for contempt regarding the plaintiff’s misappropriating of the defendant’s tax dependency exemptions for his child is granted. The order was clear and understandable that they would each take a dependency exemption; the order was violated and the violation was willful. The court makes this finding by clear and convincing evidence. Nonetheless, the court is without sufficient evidence with which to craft a sanction and is unwilling to speculate as to the amount which the plaintiff was unjustly enriched or which the defendant was caused a loss.
4. Each party shall pay their own attorneys fees, except that the plaintiff shall pay to the defendant $2,500 in attorneys fees.
5. The defendant owed child support from 2010 until June 22, 2018, in the amount of $103,870. The defendant paid $74,025, had $1,607.70 garnished, and the plaintiff received Social Security Disability payments of $17,338 as an offset thus creating an amount due to the plaintiff of $10,899.30. When this figure is offset from the $40,000 due to the defendant, the plaintiff owes the defendant $29,100.70 plus attorneys fees of $2,500 for a total of $31,600.70. The plaintiff shall pay that sum in the amount of $25 per week commencing December 1, 2018.
6. Any arrearage previously found against the defendant is vacated. The garnishment against the defendant’s Social Security benefits is extinguished. 7. All other orders, not inconsistent with these orders shall remain in full force and effect.
SO ORDERED.