Opinion
No. 99-0420660
August 2, 2004
MEMORANDUM OF DECISION
FACTS
Before this court is the defendant's, Karen Wolf Scott's, application to show cause to adjudge the plaintiff [James Scott] in contempt and a motion for modification of the judgment. This action arises from a judgment of dissolution entered between the parties on January 10, 2000. The defendant is requesting that the court order the plaintiff to pay past due child support, unreimbursed medical and therapy expenses incurred and to be incurred by the defendant for the minor child's therapy, any other payments that the court deems appropriate and, if necessary, modify the judgment and an order for counsel fees.
The court held three hearings in this matter. On September 24, 2003, the court ordered the plaintiff to pay the arrearage in child support. The court further ordered a subsequent hearing on the issues of payment for the therapy and medical expenses, in particular, the therapeutic boarding schools (past and future) and other unreimbursed medical expenses paid by the defendant.
The plaintiff paid the past due child support and has continued to pay the amount he was ordered to in the judgment of dissolution. Thus, child support arrears is no longer at issue.
At the hearing on November 20, 2003, Dr. Schowalter, the minor child's treating psychiatrist, and the defendant testified as to the circumstances why the minor child attended the therapeutic boarding schools and their cost. The hearing then was continued until January 20, 2004. At that time the defendant testified about the amount she has paid for the minor child's therapy and pending medical expenses.
On March 18, 2004, the defendant submitted a memorandum in support of her motion in contempt, order to show cause, and motion for modification. Therein, she is seeking an order from this court for 1/2 of the medical and therapy expenses or $36,300.50 that she has paid to date. She is also seeking an additional amount of $2,360 per month for the continued enrollment of the minor child, Zachary, at the Oakley School in Utah, which she alleges is a therapeutic boarding facility. CT Page 11927-s
In response, the plaintiff submitted his brief. Therein, he maintains that the issue is whether certain expenses, the wilderness program and the Oakley School, along with their associated costs as itemized by the defendant, fall within the court's existing child support order requiring the parties to "divide equally the unreimbursed costs of psychotherapy" and whether the defendant actually incurred all of the expenses she claims.
Neither the defendant nor the plaintiff has provided this court with any case law as to why or why not these expenses incurred by the defendant on behalf of the minor child are or are not medical and therapy expenses for which the plaintiff has some proportionate responsibility.
ISSUE
Whether the defendant's motion for contempt should be granted and whether the plaintiff's contempt is willful.
DISCUSSION
Connecticut procedure authorizes motions for contempt to enforce compliance with court orders. Practice Book Section 25-27. "[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases . . . To constitute contempt, a party's conduct must be willful . . . Noncompliance alone will not support a judgment of contempt." (Citation omitted; internal quotation marks omitted.) Detels v. Detels, 79 Conn.App. 467, 470, 830 A.2d 381 (2003). "The burden of establishing a prima facie showing of contempt, in this case the willful disobedience of a court order, falls upon the [moving party]." Morris v. Morris, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. FA 01 384330 (September 4, 2003, Dewey, J.). "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, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). "[E]ven if the court determines that . . . contempt would not be warranted, it may nonetheless enter an appropriate order of payment based on its interpretation of the judgment." Sablosky v. Sablosky, 258 Conn. 713, 723, 784 A.2d 890 (2001).
In the judgment of dissolution entered on January 10, 2000, this Court made the following findings that are relevant to the present issues: "(2) The parties shall have joint legal custody of the minor child, Zachery . . . (16) The [mother] shall provide medical and dental insurance for the minor child through her employment, so long as it is without cost. If it becomes a cost, the parties shall pay equally the cost of the medical insurance. Unreimbursed medical or dental expenses and costs of the minor child's therapy should be paid one-half by each of the parties. (17) If CT Page 11927-t either parent consults with therapists, that parent shall be responsible for costs attributable to that consultation, but for the minor's session with the therapists, the parties shall each pay one-half."
The defendant claims that based on the judgment of dissolution, the plaintiff is responsible for 1/2 of the cost of the therapy, but if the Court agrees that the Oakley School is not a part of the original Court's order, a modification of the judgment to require the plaintiff to pay 1/2 of the future costs of the boarding school and therapy (not covered by insurance) is for the best interests of the child. The defendant's itemized list of expenses and payments, include the following: (1) Dr. Schowalter for therapy at $1,200; (2) Evolution Consulting for taking Zachary to Utah (once unsuccessfully and the second time successfully) at $1,602; (3) Steinbrecker Associates, educational consultants, who investigated various therapeutic programs and recommended the wilderness program in Utah, known as the Second Nature Therapeutic Program at $1,000; (4) the cost of this Second Nature Therapeutic Program at $23,423; (5) a subtraction of $6544 from her insurance; and (6) tuition at the Oakley School from May 2003 through March 2004 at $51,920. The total is $72,601 from which the defendant claims that the plaintiff should pay $36,300.50 as his 1/2 share. The defendant points out that prior to attending the wilderness program and Oakley School, the minor child was diagnosed with social anxiety, trouble getting outside and seeing people and further as having "oppositional defiant disorder," "cannabis abuse" and "dysthymic disorder." She also claims attorney fees in the amount of $9,306.83.
The plaintiff argues that Dr. Schowalter only recommended a "therapeutic" boarding school for Zachery but never prescribed one; that the wilderness program was actually a school and would not allow him any contact with his son unless he agreed to cooperate with the program, of which he strongly disapproved; that the current placement at the Oakley School is at a private high school for grades nine through twelve and not at a therapeutic school; and that $12,000 of the defendant's claimed expenses for the Oakley School is a deposit which will be returned to her when Zachary completes his studies there. The plaintiff further argues that the defendant has received payment from her insurance company for the wilderness school, but has not submitted to her insurance carrier a claim for services from Evolution Consulting and Steinbrecker Associates; that the word therapy, which although undefined in the original dissolution judgment, contemplated traditional psychotherapy conducted by a licensed therapist like those at the Yale Child Study Center; that Zachary was being treated by Dr. Schowalter, Dr. Cohen and psychoanalyst, Barbara Nordhaus, none of whom authorized or approved the Oakley School or wilderness program or the seizure of the child from his CT Page 11927-u house to attend these facilities; that the defendant has failed to furnish information concerning the credentials and certification of the Utah facilities; and that the defendant has not demonstrated to the court the exact amount that she was reimbursed from her insurance and could be reimbursed if she submitted the claim to the insurance company, and, therefore, has not met her burden of proof. The plaintiff maintains that for all of these reasons, the defendant's application and motion must be denied.
To determine if certain expenses are medical or therapeutic in nature, the Court must decide whether the services rendered are a necessary part of the overall treatment of the minor child. Connecticut courts have "interpreted broadly" the term "medical expense" when used in dissolution decrees "because such decrees generally provide for the maintenance of the former spouse and children." Bucy v. Bucy, 23 Conn.App. 98, 102, 579 A.2d 117 (1990). The term encompasses an expenditure that "was made in connection with the diagnosis, cure, mitigation or prevention of disease or for the purpose of affecting any structure or function of the body or mind." (Internal quotation marks omitted.) Id. Other jurisdictions have followed this same explanation. See, e.g., Kahn v. Kahn, 23 Ariz.App. 269, 532 P.2d 541 (1975) (expenses for services rendered by clinical psychologist and psychiatric social worker were held to be medical expenses even though neither was a medical doctor); Jones v. Jones, 116 Cal.App.2d 604, 254 P.2d 67 (1953) (bills for eyeglasses held to be medical expenses); Sulman v. Sulman, 510 So.2d 908 (Fla.App. 1987) (bills for psychological counseling held to be medical expenses); Davis v. Davis, 8 Mich.App. 104, 153 N.W.2d 879 (1967) (bills from clinical psychologist held to be medical expenses). "[C]oncern for a child's mental health is equally as important as the necessities of food, shelter, physical health, and clothing. The proper care and maintenance of the [children] of the parties include tending to [their] emotional and psychological problems as well as to [their] physical problems." (Internal quotation marks omitted.) Bucy v. Bucy, supra, 102.
Medical expenses have been defined to include general medical, surgical, prescription, orthodonture, optical, opthalmological, catastrophic and therapeutic expenses. Wolf v. Wolf, Superior Court, judicial district of New London at Norwich, Docket No. FA 92099351 (January 7, 1994, Hurley, J.), rev'd on other grounds, 39 Conn.App. 162, 664 A.2d 315 (1995).
In Bucy, the court affirmed the trial court's finding "that the expenses incurred were medical within the meaning of the dissolution decree even though [the services were rendered by a psychotherapist] . . . not a medical doctor." Id., 103. The trial court concluded "that psychotherapy [was] an appropriate and effective method of treating bulimia and anorexia, both of which were fatal . . . and [t]here was no evidence presented that there [was] a better method, or, for that matter, another valid method for the treatment of these disorders." Id., 102. The trial court focused on the fact that the "treatment rendered was a necessary part of the overall treatment of the child and was made in connection with the diagnosis, cure, mitigation or prevention of CT Page 11927-v disease." (Internal quotation marks omitted.) Id., 103. Further, the court articulated that not only was the psychotherapist a specialist in this area of treatment but the terms of the decree provided for payment of all medical, dental, and orthodontia expenses, indicating that the parties had intended for the father to be financially responsible for any health problems that arose concerning his children. Id.
In a similar situation, the Appellate Court of South Carolina held that the father was responsible for his share of the payment both prospectively and retrospectively for the therapeutic boarding school, even though it was part of the extraordinary medical expenses in the divorce decree for which the father was not obligated. Haselden v. Haselden, 347 S.C. 48, 552 S.E.2d 329 (Ct.App. 2001). The relevant provisions of the divorce decree in Haselden stated that the mother was granted custody of the child and the father was ordered to pay bi-weekly child support in the amount of $476.67 per month. In addition, the father, who earned 82% of the family's income, was ordered to pay 2/3 of the child's medical expenses, excluding extraordinary medical expenses. Id., 52. Following the divorce decree, the mother enrolled the minor child into a private treatment facility, a therapeutic boarding school for children diagnosed with oppositional defiant disorder, at $4,150 per month tuition. The father sought a declaratory judgment that he was not responsible for the expenses incurred at the boarding school on the basis that those were extraordinary expenses. The mother counter claimed seeking an increase in child support and an order that the father contribute towards the expenses of the therapeutic boarding school. Id. At trial, the father argued that, while the minor child was experiencing emotional and behavioral difficulties, the mother made a premature, unilateral decision to enroll her at that school. He admitted, however, that the minor was doing better but disagreed with her being there. Id., 53.
The trial court determined that the father was responsible for payment and based its decision on the following factors: sending the minor to the private treatment facility, a therapeutic boarding school, was reasonable under the circumstances; all of the experts, who treated and evaluated the minor, agreed that an out-of-the home treatment was needed and no one dissented with placement at a therapeutic boarding school; the mother took her time in making the decision and the father was involved in the search process; the child benefitted from the program and it would be in the best interest for the child to complete it and continue with the treatment; and the economic ability of each parent to pay. Id., 53-56. The Appellate Court affirmed the decision on the basis of the factors considered by the trial court. Id., 59-60. CT Page 11927-w
But see Hilman v. Hilman, M2002-00898-COA-R3-CV (Tenn.App. 2003), in which the court disallowed reimbursement to the mother for the minor child's therapeutic expenses incurred at the wilderness program called Second Nature in Utah and two other intensive therapeutic residence programs. The relevant provision at issue stated: "[The father] agree[s] to pay `one-half . . . of any and all uncovered medical expenses CT Page 11927-y including hospital, doctor, dental, psychological or psychiatric, orthodontic and optometry expenses.'" In determining that the therapeutic costs did not obligate the father to pay his share, the court in the Hilman case evaluated the following factors: the mother failed to present sufficient evidence of which expenses were medical and covered by the dissolution agreement; the mother's decision was made unilaterally with no involvement by the father; she failed to provide him with notice and the opportunity for any input; based on the dissolution decree, the mother did not have such "unbridled authority" to decide how to care for the minor if it involved extraordinary expenses and obligated the father to pay; none of the therapeutic programs were ordered or prescribed by the child's treating physicians; and, the mother included airfare and educational consultants as a part of the "medical expenses."
Both the South Carolina and Tennessee Appellate Court characterized the facilities at issue, which are similar to the ones in the present case, as therapeutic psychiatric programs. Unlike either of these two cases, however, the judgment of dissolution in the instant matter specifically prescribes that the father and mother each pay one-half of the unreimbursed costs of medical and therapy expenses, as well as one-half of the minor's sessions with the therapists. The only intent to limit medical and therapy expenses in the judgment herein is that they are uncovered by the mother's insurance company. Nonetheless, the plaintiff continues to argue that he is not required to pay for the expenses itemized by the plaintiff inasmuch as both the wilderness camp and Oakley School are school, not therapy expenses. He further emphasizes that none of the doctors prescribed the Oakley School for the treatment of his son and that the defendant has not submitted to her insurance carrier the costs for the Oakley School, Evolution Consulting and Steinbrecker Associates because she knows these are not medical or therapy expenses.
Not only does the judgment of dissolution in the present case provide for the reimbursement of one-half of the expenses for medical and therapy costs, but in applying the factors set forth in the Tennessee and South Carolina cases used to evaluate whether the facilities to which the minor child was sent were included within the provisions of the divorce decree as medical expenses, the plaintiff should be obligated to pay one-half of the uncovered therapeutic expenses retrospectively and prospectively.
The expenditures made by the defendant on behalf of the minor child are within the meaning of medical and therapy expenses of the judgment of dissolution for the following reasons: (1) The defendant attempted to involve the plaintiff in the decision making process to the extent that she had Dr. Schowalter who treated the minor child, contact him and they engaged in a lengthy discussion regarding treatments for Zachary following Dr. Schowalter's last session with the child in January 2003; (2) A therapeutic program outside of the home area was recommended by Dr. Schowalter because the minor child was having difficulties in a number of fields and had undergone treatment already by others; (3) Zachary benefitted from both the wilderness program and Oakley School; (4) The defendant hired educational consultants to help her investigate what type of facilities were available and which ones best suited Zachary; and (5) the plaintiff did not provide the names of any alternative treatment facilities closer to home.
ORDERS
The court makes the following orders. CT Page 11927-x
(1) The plaintiff, Father is in contempt of the court orders of January 10, 2000. The contempt is not willful and counsel fees are not awarded.
(2) The defendant, Mother shall provide the insurance company with all past bills, not already submitted, and all future bills for any therapeutic expenses incurred on behalf of the minor child within 15 days of the date of this decision;
(3) The plaintiff, Father shall pay the sum of $36,350.00 representing one-half of the uncovered insurance costs for all medical and therapy expenses retrospectively. Additionally, he is liable for the prospective costs of one-half of the uncovered insurance costs for all medical and therapy expenses; and
(4) The plaintiff, Father shall make payment in the amount of $36,350.00 referred to in paragraph (3) above within 30 days of the date of the judgment. The plaintiff, Father shall pay future bills within 30 days of the date of submission.
By the court,
Holly Abery-Wetstone, J.