Opinion
No. FA 00-0436771S
July 31, 2007
MEMORANDUM OF DECISION ON POSTJUDGMENT MOTIONS FOR MODIFICATION (#172 and 179) AND FOR "ORDER AND CONTEMPT" (#173)
The parties appeared with counsel for hearing on these postjudgment motions on two days in February and June of this year. The plaintiff seeks (i) a finding of contempt for the defendant's failure since January 10, 2007, to pay child support and make monthly mortgage payments required by the judgment of dissolution and a later court order on April 24, 2004, and (ii) orders for the defendant to pay the arrearage of $16,237 found on January 10, 2007, and counsel fees of $1,395.80 ordered that same day. The defendant asks for modification of the mortgage payment order and for retroactive application of the modification of his child support order entered by the court, Burke, J. on March 27, 2007. For the reasons stated below, the defendant's request for retroactive modification of child support is granted and for modification of the mortgage debt obligation is denied; the plaintiff's motion for contempt and order is granted as specified herein.
I HISTORY OF PROCEEDINGS
The parties were previously before this court on earlier postjudgment motions addressing certain aspects of the issues here. The memorandum of decision in that matter sets forth pertinent background information:
The marriage of the parties was dissolved by the Superior Court on November 16, 2001, after an uncontested hearing. As part of the judgment of dissolution, the court (Domnarski, J.) incorporated the terms of a written stipulation signed by both parties in which the husband assumed responsibility, in a portion of the agreement captioned "Real Property," to pay for the monthly cost of second and third mortgages on the marital home, which was awarded to the wife. The agreement further provided, in an article captioned "Alimony," that he would pay alimony to the wife of one dollar per year "for the sole purpose of insuring that payment is made on the second and third mortgage[s]." On March 24, 2004, the court (Abery-Wetstone, J.) approved a postjudgment agreement between the parties authorizing the plaintiff to refinance the marital home and pay off the balance remaining on the second and third mortgages. That agreement further provided that
Pursuant to the dissolution of marriage dated November 16, 2001 the defendant is responsible for paying the 2nd mortgage and 3rd mortgage. The balance due on the 2nd mortgage is approximately $44,636.87 and the balance of the 3rd mortgage is approximately $14,843.11. The defendant, commencing May 1, 2004, shall be responsible for making monthly payments directly to the Plaintiff. Said monthly payments shall be in the amount of $494 per month for a term of 240 months or 20 years.
The plaintiff's financial affidavit filed at the time of the dissolution showed that the balance on these two mortgages was then approximately $60,000. The two mortgages had been taken out by the parties to finance and fund the defendant's dry cleaning business, which the judgment of dissolution awarded to him.
In the earlier matter this court held that the defendant's obligation to pay the mortgage liability he assumed in the judgment of dissolution was a support obligation not dischargeable in his bankruptcy proceeding and found him in contempt for not making payments on that obligation before he filed for bankruptcy on October 11, 2005. The court also held that payments not made on that obligation since the filing of his petition remained owing and due, but declined to hold in contempt for that nonpayment due to the reasonableness of his relying on the advice of bankruptcy counsel not to do so. In a supplemental proceeding on January 10, 2007, the court found that the total arrearage then owing on the mortgage obligation was $15,237; that another $500 was owed on child support; and that the defendant also owed the plaintiff counsel fees of $1,395.80. When the plaintiff's counsel asked the court on January 10th for "orders with regards to payment of same," Transc., 1.10.07, at 12, the court deferred decision until "I have information on his current financial situation." Id.
On December 29, 2006, the defendant had served the plaintiff with a motion to modify his child support order. On March 27, 2007, that motion was granted by Judge Burke, who reduced his weekly child support obligation from $150 to $105 but reserved the issue of retroactivity to this judge. On March 28, 2007, the defendant filed a motion to modify the mortgage payment order on the grounds that "I have become totally disabled from working per Social Security Administration." In addition, on February 13, the plaintiff filed a "Motion for Order and Contempt" requesting a new finding of contempt based on additional arrearages on the child support and mortgage payment obligations and again seeking orders for payment on the previously found arrearage. These are the matters now before this court.
II RETROACTIVE MODIFICATION OF CHILD SUPPORT
The court orders the modification of child support to be retroactive to the date of service on December 29, 2006. Moreover, during the proceedings before this court, it was noticed that the order entered by Judge Burke neglected to take account of the social security dependents benefits of $161 per month that the plaintiff is receiving for both each minor child. Taking that amount into consideration, the defendant's weekly child support obligation is $50, effective December 29, plus 19% of qualifying child care expenses and unreimbursed medical expenses. (A child support guidelines worksheet will be filed simultaneously with this opinion.) Based on this order, current child support in the amount of $1,450 was owing for the period January 1 through July 25, 2007, plus the arrearage of $500 found on January 10, for a total of $1,950. During this period, the defendant has paid $232 in child support. Those payments would leave a child support balance today of $1,950 — $232 = $1,718.
The evidence showed that during this period, the sum of $2,206 was taken by way of intercept from the defendant's state and federal income tax refunds to meet his support obligations to the plaintiff. This amount, applied to his present balance of $1,573, leaves him with a child support overpayment of $488. (The plaintiff has also received, or will, receive, $966 in retroactive social security dependents benefits, but since her receipt of those benefits is already being considered in the weekly child support order that retroactive check does not affect any arrearage or overage of child support.)
III MODIFIABILITY OF THE MORTGAGE PAYMENT OBLIGATION
The defendant's motion to modify his obligation to make $494 monthly payments on the mortgage obligation is, of necessity, based on General Statutes § 46b-86(a), which provides in pertinent part as follows:
Section 52-212a of the General Statutes, which provides, in relevant part, that "[u]nless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed," would otherwise deprive the court of authority to open the judgment for the purposes of modification.
Unless and to the extent that the decree precludes modification, . . . any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances . . .
The court's first inquiry here is to determine whether the obligation that the defendant here seeks to modify is of the sort covered by § 46b-86(a). Under General Statutes § 46b-86(a), not all final support obligations are modifiable, only those that are a "final order for the periodic payment of permanent alimony or support." Alimony has traditionally been categorized into two kinds: specific amounts of money to be paid to the ex-spouse either as a lump sum or overtime and periodic payments of income. The alimony modification statute only applies to the latter. Smith v. Smith, 249 Conn. 265, 752 A.2d 1023 (1999).
Thus, in Viglione v Viglione, 171 Conn. 213, 368 A.2d 202 (1976), the judgment of dissolution ordered the husband to pay periodic alimony and child support and also "required [him] to transfer his title to the family residence in Woodbridge to the plaintiff, [and] to pay the mortgage installments and taxes on that residence," id. at 214, the latter order being rather similar to the one here. After the wife remarried two years later, the defendant, claiming a substantial change of circumstances, "sought termination of the obligations to pay periodic alimony and the mortgage and taxes on the Woodbridge residence." Id. While ending alimony, the trial court concluded that "the order for the payment of the mortgage installments was not affected by the remarriage since it was in the nature of lump-sum alimony," id., although it had not been specifically denominated as such in the judgment of dissolution. In upholding the trial court's later refusal to modify that order, the Supreme Court stated as follows:
Periodic alimony may be modified by the court upon a showing of a substantial change in the circumstances of either party, and, except in the rarest of situations, the remarriage of a wife will furnish the basis for vacating such an award. Alimony consisting of a specific portion of an estate or of a specific sum of money, however, is a final judgment which the court cannot modify even should there be a change of circumstances.
In the present case, the obligation to pay the mortgage on the former family residence was not periodic alimony . . . [T[he mortgage obligation would survive the defendant's death. In ordering the mortgage payments, the court in ordered the defendant to pay the plaintiff a specific sum of money from his estate, the amount of which could be accurately determined at the time of judgment. The fact that the defendant was permitted to pay the mortgage according to an existing amortization schedule rather than in a single payment does not have the effect of changing the obligation into periodic alimony. Since the mortgage award was for a specific sum of money, the court did not err in refusing to modify it.
(Citations omitted.) Id., 215-16. Similarly, in Turgeon v. Turgeon, 190 Conn. 269, 282, 460 A.2d 1260 (1983), the dissolution judgment ordered the husband to pay "$100,000 in lump sum alimony, payable in installments over a period of seven years, an additional $40,000 in two installments over a period of six months." The Supreme Court upheld the trial court's refusal to modify that order:
The decree ordered the payment of a specific sum of money . . . Like any other money judgment, once entered, it may be subject to attack on appeal, it may be opened in a limited set of circumstances or it may be vacated by motion or petition for a new trial; it may not, however, be modified.
The mortgage payment obligation here, like those in Turgeon and Viglione, was for a specific sum (the total of the two mortgages), payable in installments, and, just as in those cases, an order for non-modifiable lump sum alimony. This order had none of the indicia that would indicate it was actually an order for periodic alimony or support modifiable under § 46-86(a): it was not for example, terminable upon death or remarriage, unlike the order in Kronholm v. Kronholm, 41 Conn.Sup. 110, 552 A.2d 459 (Super.Ct. 1988), where Judge Freed concluded that provisions of a judgment providing for termination, if the wife died or remarried, of $400 weekly payments for "a definite period of time" and "for a definite amount ($209,000)" "transform[ed] an otherwise clearly lump sum award into a periodic award." Id., 113-14. In view of the fact that the parties here intended the order for the husband to pay the second and third mortgages to be in the nature of support and maintenance for the wife and children, it is most reasonable here to construe this obligation as lump sum alimony (rather than a property distribution, which would, under the express terms of § 46b-86(a) also be nonmodifiable). Although § 46b-86(a) allows postjudgment modification of "final orders" for the periodic payment of permanent alimony or support," the court is not aware of any case law construing the term "support" in that clause to mean anything other than periodic alimony.
This court made such a finding in its previous decision on plaintiff's postjudgment motions for contempt (#'s 140, 145, 147, 151), and the defendant is now bound, under principles of collateral estoppel, by that previous finding. "Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . ." Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 69 Conn.App. 151, 154-55 (2002). "An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn.App. 571, 577-78, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000). Whether this order was in the nature of support was the central issue in the prior proceeding, where the issue was fully and fairly litigated, actually decided, and necessary to the court's resolution of the issues there.
General Statutes Section 46b-86(a) provides, in pertinent part that "[t]his section shall not apply to assignments tinder section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law."
Approximately 2 1/2 years after the judgment of dissolution, on March 12, 2004, the plaintiff filed a motion for contempt by way of citation alleging, in part, that the defendant had not paid these mortgages, "thereby causing house to be in danger of foreclosure." On March 24, 2004, the court entered an order adopting the parties' written agreement "[w]ith respect to the Plaintiff's Rule to Show Cause" that permitted the plaintiff to refinance the marital home and pay off the existing three mortgages and required the defendant to pay the remaining balance on the second and third mortgages of $59,479.98, plus six percent annual interest, at the rate of $494 per month for the next twenty years. The dissolution judgment had provided that plaintiff would receive alimony of only one dollar per year, presumably amount modifiable if defendant did not honor his obligation to pay the second and third mortgages. The court order of March 24, however, did not modify alimony. Instead, it entered an order "with respect to the plaintiff's rule to show cause" for payment of $59,479.98 plus interest in monthly installments of $494 for 20 years. The March 24, 2004, order was thus not an order for periodic alimony or support modifiable under § 46b-86(a), but a remedial order entered on a motion for contempt that had been brought because of the defendant's failure to comply with his financial obligations under the judgment. The defendant's motion for modification of the order that he pay the mortgage debt is thus denied.
IV PLAINTIFF'S MOTION FOR ORDER AND CONTEMPT A. Contempt
Finally the court must address the plaintiff's motion seeking a new finding of contempt and orders implementing its previous finding of contempt. The evidence is clear that the defendant has made no new payments since the last motion for contempt for the specific purpose of paying for the mortgages. He has been awarded Social Security Disability retroactive to the beginning of this year. Despite his limited income from Social Security, he has offered no lawful or reasonable justification for his failure to make any payments whatsoever toward this obligation, and the court finds that the defendant acted wilfully in not complying with the court order and holds him in further contempt. Between January 10, 2007, and the date of the last hearing on June 8, 2007, the arrearage of $15,237 on the mortgage debt obligation increased by another six months worth, which equals $494 times six, or an additional $2,964, for a new total (as of that date) of $18,201, plus counsel fees previously awarded of $1,395.80.
B. Remedial Orders
1. Although some of his income tax refunds from last year were intercepted by the Interval Revenue Service, the sum of $3,455 from his federal tax refund was not; and, as of the last hearing date, the defendant and his wife had not yet received that cheek. He was then also still owed $1,741 in retroactive social security payments. If he has not yet received and spent these checks, the first $1,395.80 shall be immediately paid to plaintiff's counsel and the balance to the plaintiff.
Moreover, his wife traded in his 2002 Kia, which the defendant had valued on March 27, 2007, as having equity of $4,100, and bought a new car solely in her name. Although she may have been the defendant's primary means of support recently, that fact did not give her the right to convert an assert of his that could have been used to pay off debt her husband owes his ex-wife.
2. By virtue of the tax intercepts and the retroactive modification of child support, the defendant has a child support balance of $488, which shall be credited toward the mortgage debt obligation.
3. The defendant is also ordered to make regular payments for child support and toward the mortgage debt obligation. Social Security benefits are ordinarily exempt from attachment or garnishment, but the Social Security Act provides a specific exception to "legal process brought . . . by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony." 42 U.S.C. § 659(a). Here, the court orders a garnishment of the defendant's monthly Social Security in the following amounts and for the following purposes:
42 U.S.C. § 659, captioned "Consent by United States to Income Withholding, Garnishment, and Similar Proceedings for Enforcement of Child Support and Alimony Obligations," provides in part as follows:
(a) Consent to support enforcement
Notwithstanding any other provision of law (including section 407 of this title and section 5301 of title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony."
a. $215 for his child support obligation of $50 per week;
b. $494 for his lump sum alimony monthly obligation for to pay the mortgage debt; and
c. $100 toward the arrearage on the lump sum alimony.
4. The court will continue the case for monitoring for three months, for the sole purpose of determining how much the defendant received in retroactive social security payments and tax refunds that were paid to plaintiff and her attorney in order to determine the current arrearage on the lump sum alimony.