Opinion
No. FA 92-0518627 S
November 3, 2005
MEMORANDUM OF DECISION (PETITIONER'S MOTION FOR CONTEMPT RE UNREIMBURSED MEDICAL BILLS)
The pro se Petitioner, Ellen M. Burns (f/n/a Ellen B. Landers) is seeking reimbursement from the pro se Respondent, Thomas E. Landers, Jr., for his 50% share of certain unreimbursed medical expenses incurred by the two minor children issue of the marriage (dissolved October 21, 1996).
The bills in question were for counseling services provided by a Dr. Christiana for numerous visits during the period between April 2000 and May 2002, and one additional visit in December 2002. Medical insurance coverage had been terminated as of March 31, 2000.
The Petitioner claimed on each of the three hearing dates before this Court in September 2005 that the Respondent's 50% share of these expenses totals $1,945. In her Brief dated October 13, 2005, the Petitioner increases her claim by $100, i.e., 50% of a $200 unpaid balance due to Dr. Christiana.
The Respondent raises the following defenses (as stated in his Brief dated September 29, 2005): (a) He has reimbursed the Petitioner in full for all such expenses. (b) The Petitioner's letter to the Respondent dated October 28, 2004 (copy attached to his Brief) regarding unreimbursed medical bills for other providers does not mention Dr. Christiana's bills, and that the Petitioner's subsequent renewal of the claim was in retaliation for custody issues raised by the Respondent. (c) The bills in dispute are too old to be enforced.
He also argues that these bills were paid as part of payments he made in the past for other medical providers, but were made so long ago as to make it impossible for him to prove such payments. Thus the Respondent's defenses are considered by this court to included laches, waiver and estoppel, though not specifically stated as such.
The court file reflects that the parties were present in Family Support Magistrate court on several dates during the year 2004 on the contempt motion for unpaid medical bills. The Respondent was represented by private counsel at those hearings. It was repeatedly indicated on the record by Respondent's counsel, in the presence of the Respondent (as recently as September 1, 2004 before this Court), that findings of and payments on the unreimbursed medical arrearage balance did not include amounts due to Dr. Christiana, as counsel needed additional time to review those bills with the parties. See transcripts of May 12, 2004, pp. 2-3, and September 1, 2004, p. 6.
SUPPORT IN GENERAL
"`Both state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. Turner v. Turner, 219 Conn. 703, 713-20, 595 A.2d 297 (1991); 42 U.S.C. § 651 et seq. (Part D of Title IV of the Social Security Act). Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. See generally A. Houseman, `Poverty Law Developments and Options for the 1990s,' 24 Clearinghouse Review 2, 5-7 (1990); P. Roberts, `Child Support and Beyond: Mapping a Future for America's Low-Income Children,' 22 Clearinghouse Review 594 (1988). As with any income source, the effectiveness of child support in meeting the needs of children is, of necessity, increased when payments are made regularly and without interruption.' Mulholland [v. Mulholland, 31 Conn.App. 214, 224, 624 A.2d 379 (1993)]. Mulholland v. Mulholland, supra, 229 Conn. 651-52." Sablosky v. Sablosky, 258 Conn. 713, 731, 784 A.2d 890 (2001).
"A different conclusion would not only frustrate clearly defined public policy regarding the parental obligation to support minor children . . . but it also would encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments." (Citation omitted; internal quotation marks omitted.) Id., 722.
"The present situation is similar to that in which a party makes a motion for modification of a support order on the ground of a substantial change in circumstances. Although one party may believe that his or her situation satisfies this standard, until a motion is brought to and is granted by the court, that party may be held in contempt in the discretion of the trial court if, in the interim, the complaining party fails to abide by the support order. See, e.g., Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988) (trial court did not abuse discretion in holding defendant in contempt for not making child support payments on grounds of inability to pay where defendant did not seek modification of support order until after plaintiff instituted contempt proceedings); Bozzi v. Bozzi, 177 Conn. 232, 238, 413 A.2d 834 (1979) (finding of contempt proper where defendant ceased making child support payments due to erroneous belief that plaintiff's failure to allow visitation suspended or terminated obligation, where defendant did not first seek and have granted modification of order)." Sablosky v. Sablosky, supra, 722.
LACHES
"`Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.' (Citation omitted; internal quotation marks omitted.) Farmers Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990). Even if we assume arguendo that the plaintiff delayed in filing her second motion for contempt and that the delay was inexcusable, the record still does not contain any evidence that the defendant would have been in a more advantageous position had the plaintiff filed her motion earlier. Absent a showing of prejudice, we conclude that the evidence is sufficient to support the court's conclusion that the defendant failed to prove laches." Sablosky v. Sablosky, 72 Conn.App. 408, 413-14, 805 A.2d 745 (2002).
In the present case Mr. Landers, through counsel, repeatedly indicated to the court during 2004 that more time was needed to attempt to resolve the specific issue of the amount (if any) the Respondent owes the Petitioner for Dr. Christiana's bills. As the history of this case aptly demonstrates, the parties were not able to reach an agreement. It appears that the Respondent and/or his counsel were responsible for at least some of the delay. It is noted that the September 15, 2005 hearing before this Court was continued to September 29, 2005 with the agreement of the Respondent, based upon his representation that he would use the intervening time to meet with his prior counsel to obtain proof that past arrearage payments included payments for the Dr. Christiana account. The Respondent reported on September 29, 2005 that no such meeting occurred.
The docket indicates that over 185 pleadings have been filed with the court since the action was commenced, thus demonstrating the tortured course this case has taken.
Further, as indicated in Sablosky, ( supra) the application of the defense of laches also requires a showing of prejudice to the Respondent. Gray v. Gray, Superior Court, judicial district of Tolland at Rockville, Docket No. FA64-9592 (April 17, 2003, Klaczak, JTR). In Gray, a contempt motion was brought by the Plaintiff in 2002 seeking a child support arrearage for a current order that terminated upon the child attaining the age of 18 in 1977. The court (Klaczak, JTR), found that the Plaintiff had taken no action since 1977. The court did not find laches as a defense, as the only prejudice the Defendant proved was his inability to produce payment records after many years.
Similarly, Mr. Lander's only discernable claim of prejudice is his inability to produce payment records. The Respondent failed to offer any other evidence tending to prove that he "would have been in a more advantageous position had the plaintiff filed her motion earlier," ( Sablosky, supra, p. 413-14). For example, the Respondent did not present any evidence suggesting that his current financial ability to pay an arrearage is in any way diminished in comparison to his past ability. Accordingly, the court finds that the Respondent has failed to prove laches as a defense.
WAIVER
"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." (Citations omitted; internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251-52, 618 A.2d 506 (1992). In the present case, little if any evidence of waiver was presented at the contempt hearing. On that basis, we conclude that it would not have been reasonable to infer waiver from the circumstances. Accordingly, the evidence is sufficient to support the court's conclusion that the defendant failed to prove waiver." Sablosky v. Sablosky, supra, CT Page 17013 72 Conn.App. 414. See also Gray, supra, p. 3.
The mere lapse of time does not constitute waiver. Based upon the unique facts and circumstances of this case, the court finds that the Petitioner did not wait an unreasonably long period of time to seek an arrearage finding. Therefore it is not reasonable to infer waiver.
ESTOPPEL
"`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 . . . 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 how the true state of things but also lacked any reasonably available means of acquiring knowledge.' (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 366-67, 659 A.2d 172 (1995)." Sablosky v. Sablosky, supra, 72 Conn.App. 414-15.
The court finds that the Petitioner's letter of October 28, 2004 was not intended to induce the Respondent to believe that the Petitioner had dropped her claim regarding Dr. Christiana's bills (particularly because it was drafted soon after the September 1, 2004 court hearing, and does not specifically relinquish the claim), but merely provided the Respondent with notice of additional medical bills. Further, the court finds that no evidence was offered to prove that the Respondent changed his position and incurred harm as a result. Therefore, the court finds that the Respondent has failed to prove equitable estoppel as a defense.
CONCLUSION
The Respondent and/or his former counsel were at least partially responsible for the lengthy delay in bringing the matter at issue to conclusion. This time period, with its repeated continuances, certainly afforded the Respondent and/or his attorney more than ample opportunity to research and provide proof of payments. Based upon the Petitioner's credible testimony and supporting documentation, the court finds that sufficient evidence has been provided confirming that the expenses claimed were paid by the Petitioner to the provider. The court also finds the Petitioner's testimony credible as to her allegation that the amounts claimed remain outstanding. The Respondent has failed to meet his burden of proof as to payments or as to any of the other defenses he raised.
Therefore, the court finds an arrearage due to the Petitioner in the amount of $1,945 (i.e., the amount in dispute as agreed upon by the parties during the three most recent hearing dates). The Respondent is ordered to make two lump sum payments of $972.50 directly to the Petitioner. The first lump sum payment is due by December 9, 2005 as a pay date only, with December 14, 2005 ordered as an excusable court date to monitor compliance with the payment. The second lump sum payment is due by January 13, 2006 as a pay date only, with January 18, 2006 ordered as an excusable court date to monitor compliance with the payment.