No. FA07 402 17 34
September 11, 2009
MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT (#s 140.39 139.89)
At issue in the present case is whether the defendant's motions for contempt should be granted for failure to pay child support, to provide disclosure or pay the plaintiff's social security claim as required by their separation agreement as well as payment of attorneys fees.
On August 8, 2007, the plaintiff, Henry Radomski, and the defendant, Tecla Radomski aka Lakowski, filed for a dissolution of marriage. On September 29, 2008, the parties entered into a separation agreement. The agreement was subsequently incorporated into the dissolution decree by the court on October 1, 2008.
On October 17, 2008, the defendant filed the first of her motions for contempt postjudgment to compel the plaintiff to sign a release as required by the court's orders entitling her to a portion of proceeds of the plaintiff's social security disability claim. On October 14, 2008, she had received a copy of the release from the plaintiff which read: "You are hereby authorized to notify my former spouse, Tecla Radomski or her Attorney, Verna Lilburn, when my social security disability claim has been resolved." The defendant claims that the release was not in compliance with the orders of the court. As a result the defendant contends that the plaintiff is in contempt and requests that the plaintiff execute the release prepared by her counsel and provided to the plaintiff on October 1, 2008 as well as payment of her attorneys fees.
On December 22, 2008, the defendant filed her second motion for contempt regarding the plaintiff's contribution to the post-secondary educational expenses for Andrew Radomski. A third motion for contempt was also filed by the defendant on December 22, 2008, addressing again the release in which she alleged that it did not comport with the orders of the court and she requested attorneys fees. Therein, she further alleged that, although the plaintiff's social security disability claim was resolved on November 17, 2008, she still had not received information regarding the claim nor had the plaintiff signed the release prepared by her counsel. The defendant filed her next motion for contempt on April 29, 2009 based on the plaintiff's failure to pay child support as required in paragraph two of the separation agreement for the minor child, Peter Radomski, born on February 29, 1991, and, subsequently, on June 19, 2009, filed the identical motion for contempt. Also, on June 19, 2009, the defendant filed another motion for contempt, identical to the one filed on December 22, 2008, for attorneys fees and to compel disclosure and payment of the plaintiff's social security disability claim as set forth in paragraph four of their separation agreement. On July 15, 2009, the plaintiff filed a memorandum of law in opposition to the motion for contempt regarding his social security benefits and nonpayment of child support. Thereafter, the defendant filed a memorandum of law in support of her motions for contempt, which were dated May 22, 2009 and filed on June 19, 2009.
A civil contempt proceeding may be maintained to enforce an order of the court for the "noncompliance with court rules, orders, judgments or mandates, but not statutes." Calway v. Calway, 26 Conn.App. 737, 747, 603 A.2d 434 (1992). "To constitute contempt, a parties' conduct must be wilful." (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn.App. 318, 326, 966 A.2d 292, cert. denied, 292 Conn. 902, 971 A.2d 40 (2009). "A finding of contempt cannot be based on an order that is vague and indefinite. Wilson v. Wilson, 38 Conn.App. 263, 271, 661 A.2d 621 (1995). The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind. Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). Noncompliance alone will not support a judgment of contempt. Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." (Citation omitted; internal quotation marks omitted.) Hill v. Family Builders, LLC, Superior Court, judicial district of Danbury, Docket No. CV 05 4002713 (June 3, 2009, Shaban, J.).
The defendant argues that the plaintiff did not comply with the court's orders regarding his "statutory and common-law duty to support his minor children," and, therefore, he is in contempt for nonpayment as of February 1, 2009. The defendant relies on paragraph two of the separation agreement which states that the plaintiff is obligated, as of October 1, 2008, to "pay $115 per week as child support as per statute, payable on a monthly basis on the 1st of each month." The defendant further argues that the plaintiff's child support payments do not "automatically terminate once payment of [his social security] . . . dependant benefits commenced" and that there is "no set off provision in [their] [s]eparation [a]greement whereby the plaintiff [would be] entitled to [s]ocial [s]ecurity benefits [that] rightfully belong to his children." Moreover, the defendant asserts that the plaintiff's "[s]ocial [s]ecurity dependency [allowance] benefits (SSDA) paid to the children [are to] be included in the plaintiff's gross income for purposes of determining his support obligation under the guidelines" and that he "cannot simply state that his obligation is fulfilled by receipt of [s]ocial [s]ecurity dependency benefits by the children." In response, the plaintiff counters that the defendant "has no legal claim to any child support arrearage as she received the [o]rdered weekly child support up to the date of receiving the SSDA, and received the SSDA since that date." He further maintains that since the SSDA is greater than his child support obligation, the payment completely satisfies his obligation and allows the social security benefits paid to dependent children to be credited toward his child support payments and, in fact, "the [d]efendant owes the [p]laintiff between $18,000 and $20,000."
At the time of their divorce, Peter Radomski was the only minor child.
Connecticut Child Support Guidelines, General Statutes § 46b-215a et seq., are utilized by the courts in determining the appropriate child support amounts. To calculate the support obligation, the court uses the parents' net income which is defined as gross income minus allowable deductions. Regs., Conn. State Agencies § 46b-215a-1. Gross income inclusions include, inter alia, "social security benefits (excluding Supplemental Security Income (SSI)), including dependency benefits on the earnings record of an insured parent that are paid on behalf of a child whose support is being determined . . ." Regs., Conn. State Agencies § 46b-215a-1(11)(A)(ix). "The purpose of a child support order is to provide for the care and wellbeing of minor children, and not to equalize the available income of divorced parents . . ." (Internal quotation marks omitted.) Tarbox v. Tarbox, 84 Conn.App. 403, 410, 853 A.2d 614 (2004).
In Tarbox, the court addressed the issue of "whether a parent who has been ordered, pursuant to a judgment of dissolution, to pay child support and who subsequently [became] disabled may satisfy that obligation to the custodial parent by means of the social security dependency benefits (dependency benefits) paid directly to, rather than on behalf of, a child who has reached the age of majority." Id., 404-05. The court stated: "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. See Jenkins v. Jenkins, [ 243 Conn. 584, 704 A.2d 231 (1998)]. Jenkins concerned the postjudgment modification of a child support obligation. Our Supreme Court held that the dependency benefits paid on behalf of the minor children and credited toward the plaintiff's child support obligation must be included in his gross income for purposes of determining the amount of child support required under the guidelines. Id., 595. The rule in Jenkins could have been applied here. If the plaintiff in this case wanted the blessing of the court to credit the dependency benefits paid to his younger child toward the child support obligation, he could have requested first a modification of his child support and submitted guideline worksheets reflecting his changed financial circumstances for the purpose of determining the amount of his child support obligation, as the plaintiff did in Jenkins." Tarbox v. Tarbox, supra, 411. The court concluded that "[a]lthough we think it prudent for a noncustodial parent who has applied for social security benefits to file a motion for modification on the basis of a change of circumstances, the filing of that motion in no way relieves the parent of his or her obligation to provide child support for the benefit of the parties' child or children until such time as there is a modification, if any, of the order." Id., 414.
Per paragraph two of the parties' separation agreement in the present case, the plaintiff is obligated to pay in child support $115 per week. The plaintiff paid his weekly child support obligation through January 31, 2009 and, thereafter, beginning on February 1, 2009 made payments of his SSDA benefits directly to the defendant that he claims exceeded his child support obligation payments. The support was to be paid to the defendant, however, for the benefit of the minor child, Peter Radomski. The plaintiff should have moved for modification of his support order for the court to include his SSDA benefits as a part of the parents' net income from which the court could calculate his child support payments. Since he failed to do so but nevertheless alleges that he continued paying the defendant his SSDA benefits the court shall not find him in contempt. Until such time as the plaintiff moves for modification, he is required to pay the defendant $115 per week as child support. The defendant's motion for contempt for nonpayment of child support is denied.
The defendant argues that pursuant to the separation agreement, paragraph four, which designates payment of the retroactive portion of the plaintiff's social security disability claim as part of their property settlement, the plaintiff is in contempt because he failed to sign the appropriate release and pay the property settlement. She further argues that instead of the plaintiff moving to open the divorce judgment, "he impermissibly attempts to retroactively modify the parties' Separation Agreement so that he may keep his full retroactive Social Security Disability claim and he seeks to add a new provision into the agreement, specifically that the defendant has an offsetting obligation to pay the plaintiff 80% of the retroactive dependent's benefits paid by the defendant for the benefit of the parties' minor child and to the parties' son who has reached the age of majority." In response, the plaintiff agrees that he owes the defendant 20% of the social security disability claim benefits arrearage, but argues that she "has an offsetting obligation to pay [him] 80% of the SSDA arrearage received by her." The defendant asserts that the court must conclude that the SSDA arrearage payment of $39,000 is either a "vested benefit . . . covered under Paragraph 4, or in the alternative . . . a windfall for the plaintiff, not the defendant."
The defendant in her memorandum of law in support of her motion, refers to this paragraph as paragraph three. This appears to be a mistake since paragraph three states: "Each party shall be responsible for those debts shown on their financial affidavits."
The SSDA arrearage, to which the plaintiff refers is the amount of additional child support that he claims he has paid directly to the defendant since February 1, 2009.
General Statutes § 46b-81 "authorizes the court to issue orders respecting marital property only at the time of dissolution; it does not authorize postjudgment orders for the division of marital property." Rathblott v. Rathblott, 79 Conn.App. 812, 818, 832 A.2d 90 (2003). Thereafter, this court lacks authority under § 46b-81 to issue postjudgment orders regarding the parties' property division, unless the postjudgment motion seeks to effectuate a term of the dissolution judgment. See id., 817. In addition, General Statutes § 46b-66 provides the court with jurisdiction to incorporate a separation agreement into its order or decree if on review it finds the agreement fair and equitable under the circumstances. Nonetheless, "the trial court has no jurisdiction to open a judgment and affect the property assignment except within four months after the original judgment. General Statutes 52-212a . . ." (Citations omitted.) Clement v. Clement, 34 Conn.App. 641, 644-45, 643 A.2d 874 (1994). See also Practice Book § 17-4. A judgment that incorporates a separation agreement in accordance with a stipulation of the parties is interpreted as "a contract . . . which places it and the matters covered by it beyond further controversy . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement." (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 17-18, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004).
In the present case, the payment made by the plaintiff to the defendant is a part of the property settlement set forth in paragraph four of the separation agreement. That paragraph reads as follows: "The plaintiff shall pay the defendant 20% of the retroactive portion of his social security disability claim up to the date of dissolution within 3 days of receipt. Said payment will be after normal deductions including attorneys fees. The plaintiff shall sign a release so that the defendant can access information regarding resolution of this social security claim from his social security disability attorney. Said payment shall be considered a property settlement." The plaintiff alleges he received a check in the amount of $55,357 as his social security disability claim on May 20, 2009. As per agreement by the parties, the defendant is entitled to 20% of the SSDI claim. Since their separation agreement contains no provision for an offset of 80% or of any kind for the SSDA benefits paid to the defendant for the children, the court has no authority to modify the property division provision in paragraph four of the parties' separation agreement. The court finds that the plaintiff's failure to pay the 20% may not have been wilful, and, therefore, the court shall not find him in contempt at this time.
As discussed previously, for the court to include the plaintiff's SSDA benefits as a part of the parents' net income from which the court could calculate his child support payments, the plaintiff should have moved for modification of his support order.
Next, the defendant argues that pursuant to General Statutes § 37-3a she is entitled to interest on 20% of the plaintiff's retroactive social security disability claim from the time that these funds were due and payable as wrongfully withheld funds. Section "37-3a(a) provides in relevant part: [I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . . It is not in dispute that such an award of interest may be made in marital dissolution actions." (Internal quotation marks omitted.) Sosin v. Sosin, 109 Conn.App. 691, 703, 952 A.2d 1258, cert. granted on other grounds, 289 Conn. 934, 958 A.2d 1245 (2008). The Appellate Court has "construed the statute to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances . . . The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court." (Internal quotation marks omitted.) McCullough v. Waterside Associates, 102 Conn.App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).
"Before awarding interest [under § 37-3a], the trial court must ascertain whether the [party against whom interest is sought] has wrongfully detained money damages due the [aggrieved party] . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the [aggrieved party] . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . .
"A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.
"The determination of whether a retention of payment was wrongful is inherently fact bound, and . . . lower courts [must] evaluate the unique facts of each case in exercising their discretion to award or to disallow interest under § 37-3a . . . [A] party's burden of demonstrating a wrongful detention of payment requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful . . . Although bad faith is one factor that the court may look at when deciding whether to award interest under § 37-3a . . . in the context of the statute, wrongful is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so." (Citations omitted; internal quotation marks omitted.) Sosin v. Sosin, supra, 109 Conn.App. 703-04.
Although the contempt remedy is appropriate on a finding of wilful conduct; Auerbach v. Auerbach, supra, 113 Conn.App. 326; an award of interest under § 37-3a "is whether the money was wrongfully withheld . . . The statute, therefore, applies to claims involving the wrongful detention of money after it becomes due and payable." (Citation omitted; internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn.App. 712, 740, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). "These considerations are legally distinct such that the court's denial of the defendant's motion for contempt in no manner prohibits the court from finding that the plaintiff had detained payment wrongfully." Sosin v. Sosin, supra, 109 Conn.App. 706. Since the plaintiff wrongfully withheld the money due the defendant as a part of their agreed upon property division, the defendant is entitled to interest on the 20% of the plaintiff's social security disability claim benefits to be calculated from the time the wrongful detention began.
Lastly, the defendant argues that pursuant to General Statutes § 46b-87, she is entitled to attorneys fees "based upon the plaintiff's contempts." She maintains that the plaintiff understood the court orders and failed to pay her what "was rightfully hers." Since the court, however, has not in the present case, found the plaintiff in contempt, she is not entitled to attorneys fees. The defendant's motions for contempt are denied.