Opinion
No. FA08-4014156S
March 17, 2010
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court on September 26, 2008. At that time, the parties entered into a Parental Responsibility Plan and a Separation Agreement, ("Agreement") which were incorporated by reference into the decree. In relevant part, the parties share custody and the obligation for support of the two children, Noah, born January 17, 1991, and who has since reached his majority, and Honor, born April 19, 1993. Noah attends college. Honor currently lives with the defendant wife ("wife") in France, and, in fact, has done so since August 2009. Under the terms of the Agreement, the non-residential parent is responsible for one-third of the electric, cable, telephone, water, and food expenses incurred by the residential parent, and, in addition, one-half of clothing, medical insurance premiums, unreimbursed medical/dental, and school-related expenses for Honor. (Exhibit B.) It is the wife's contention that the husband has failed and neglected to reimburse her for these expenses for the months of September 2009 through and including March 2010, for which she has made demand.
This matter comes before the court by way of the wife's Motion for Contempt (#120.01) dated January 19, 2010 which was served on the plaintiff husband ("husband") per an Order of Notice. In addition to a finding of contempt, the wife seeks an order determining the arrearage, an award of attorneys fees, interest, and reimbursement for her travel expenses from France. The court conducted a hearing on March 15, 2010 at which the wife was present and gave testimony, and the husband neglected to appear.
FINDINGS
The court, having heard the testimony of the wife, and after consideration of the evidence hereby finds as follows:
1. That there was a clear and unequivocal order of the court dated September 26, 2008;
2. That the husband has failed to comply with said order;
3. "Due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel and have a chance to testify and call witnesses in his behalf." Bryant v. Bryant, 228 Conn. 630, 637 (1994);
4. That due to the husband's failure to appear at the hearing, the court is unable to determine whether the husband's failure to comply was wilful;
5. That the husband received actual notice of the pendency of the Motion for Contempt by virtue of service at his residence in New York, by a process server authorized to do so. Cato v. Cato, 226 Conn. 1, 9 (1993);
6. That the wife claims an arrearage for the period commencing August 2009 through and including March 2010 in the amount of $7,539.41; that the court has reviewed the evidence set forth in Exhibit A in light of the decree and the Separation Agreement incorporated therein (Exhibit B); and that the evidence supports a finding that there is due and owing from the husband by way of an arrearage, sum of $4,289.57;
7. That, pursuant to General Statutes § 46b-62, where there is a breach of a court order, but no finding of contempt, it is within the discretion of the court to award reasonable attorneys fees, so long as a party against whom they are assessed is given an opportunity to challenge the reasonableness of the fees. Dobozy v. Dobozy, 241 Conn. 490, 499-500, (1997); Sardilli v. Sardilli, 16 Conn.App. 114 (1988); Nelson v. Nelson, 13 Conn.App. 355 (1988);
8. That the court has reviewed the Affidavit of Counsel Fees dated March 15, 2010, as on file, and while the court finds that the fees claimed by the wife, per said Affidavit of her counsel, as on file, are fair and reasonable, under all the facts and circumstances, the court finds that it is appropriate to award her the sum of $2,500.00 as and for a portion of her attorneys fees, together with the sum of $226.10 for her costs incurred herein, for a total of $2,726.10;
9. That the court declines to award the wife her travel expenses, as there is no statutory basis to do so;
10. The decision to award post-judgment interest is within the sound discretion of the court, and if it is awarded, its accrual begins as of the date of judgment. Bower v. D'Onfro, 45 Conn.App. 543, 550-51 (1997); that pursuant to General Statutes § 37-3a, a court may award interest of up to 10% per annum on monies wrongfully detained, even in the absence of a finding of contempt; that "wrongful conduct," which is "legally distinct" from wilful conduct, "simply means that the act is performed without the legal right to do so," and it is a question of fact; that to award post-judgment interest pursuant to the above statute, the court must find that the money was "wrongfully detained" and "the date upon which wrongful detention began." Sosin v. Sosin, 109 Conn.App. 691, 704-07 (2008); and that under all the circumstances, the court declines to award interest as it has an insufficient basis to determine whether the husband's conduct was wrongful.
ORDER IT IS HEREBY ORDERED THAT:
1. Within thirty (30) days from the date of this order, the husband shall pay to the wife the sum of $4,289.57, which represents the arrearage in child support for the period September 2009 through and including March 2010;
2. Within forty-five (45) days from the date of this order, the husband shall pay to Louise A. McGlynn, Esq., the sum of $2,726.10, which represents the reasonable attorneys fees and costs incurred by the wife in connection with this motion. The foregoing notwithstanding, the husband shall have thirty (30) days from the date of this order to petition the court for a hearing regarding the reasonableness of the fees, and in the event of such a challenge, the payment pursuant to this paragraph shall be suspended pending further order of the court.
3. Notice of this Order shall be mailed to the husband at 20 Park Avenue, Apt. 2F, New York, New York 10016.