Waldschmidt
v.
Waldschmidt

Connecticut Superior Court Judicial District of New Haven at New HavenMay 18, 2006
2006 Ct. Sup. 9150 (Conn. Super. Ct. 2006)

No. FA 95-0381223S

May 18, 2006


MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR CONTEMPT (#136)


STEPHEN F. FRAZZINI, JUDGE.

The plaintiff's postjudgment motion for contempt alleges that her ex-husband has not complied with the alimony provisions of the judgment of dissolution. Pursuant to an order of notice dated April 3, 2006 finding that the defendant now lives in Florida and authorizing service of this motion "by having some authorized person in the state where the party to be notified lives serve the said party and file proof of service with this Court," the plaintiff caused personal service of the motion to be made upon the defendant on April 12, 2006, by an authorized Florida process server and for proof of such service to be filed with this court. The order to show cause specified a hearing date for May 11, 2006. The plaintiff appeared on that date but the defendant did not. In addition to the return of service, she offered other testimony establishing that defendant had actual notice of the proceedings on that day and refused to attend the court proceedings.

At the hearing on that date, plaintiff established that the judgment of dissolution entered by the court, Stevens, J., in its Memorandum of Decision on July 15, 1998, ordered the defendant to pay weekly alimony of $250 per week for 12 years, ordered the parties each April 30 to exchange their individual and business tax returns, and further ordered defendant to pay, as additional alimony, ten percent of any gross income exceeding $100,000 per year. The evidence offered to this court established that the defendant has not paid alimony since July 1999, owes an alimony arrearage of $88,500 on the order for payment of $250 per week in periodic alimony as of the date of the hearing, and has never provided her with the annual income tax returns. She sought a weekly wage withholding order for the $250 periodic alimony payment and the same toward the arrearage. In response to inquiry from the court, her attorney also said that she sought statutory interest and counsel fees. No motion for modification of the alimony order ever having been filed by the defendant, the court that day ordered a wage withholding of $250 per week for payment of current alimony, effective upon service of that order on defendant pursuant to General Statutes § 52-362(c)(2), and heard evidence on plaintiff's motion for contempt regarding her allegation that defendant was not complying with the alimony order.

Section 52-362(c) of the General Statutes provides as follows:


"(1) If an obligor is delinquent on support payments on any prior order of support in an amount greater than or equal to thirty days obligation, whether or not such order is subject to a contingent income withholding, such obligor shall become subject to withholding and the dependent shall cause a delinquency notice to be served on such obligor. The delinquency notice shall include a claim form and be in clear and simple language informing the obligor that (A) such obligor is delinquent under the support order in a specified amount and any additional amounts accruing until the effective date of the withholding order, (B) a withholding order has become effective against such obligor's income, (C) such obligor has fifteen days to request a hearing before the court or family support magistrate, and at such hearing such obligor may contest the claimed delinquency and the imposition of the income withholding, seek modification of the withholding order, and claim any lawful exemption with respect to such obligor's income, (D) such obligor has a right to seek modification of the support order by a proper motion filed with the court or family support magistrate, (E) eighty-five percent of the first one hundred forty-five dollars of disposable income per week are exempt, and (F) the amount of the withholding order may not exceed the maximum percentage of disposable income which may be withheld pursuant to Section 1673 of Title 15 of the United States Code, together with a statement of such obligor's right to claim any other applicable state or federal exemptions with respect thereto. The claim form shall contain a checklist identifying the most common defenses and exemptions such that the obligor may check any which apply to the obligor and a space where the obligor may briefly explain the claim or request a modification of or raise a defense to the support order.

(2) An obligor shall become subject to withholding to enforce a prior order of support upon the request of the dependent regardless of any delinquency, and whether or not such order is subject to a contingent income withholding. In such cases, the dependent shall cause a notice to be served on such obligor which notice shall comply in all respects with the delinquency notice required under subdivision (1) of this subsection except that such notice shall not be required to allege a delinquency."

Although the defendant now resides out-of-state, the court has personal and subject matter jurisdiction to hear the plaintiff's motion. Pursuant to the order of notice, he received in-hand service of the motion and has actual notice of the proceeding. Section 46b-46(b) of the General Statutes permits the court to exercise personal jurisdiction over the non-resident defendant because he received actual notice and plaintiff met statutory residency requirements at the time of judgment. The statute does not limit jurisdiction, to alimony orders entered pendente lite or at the time of judgment. In Cashman v. Cashman, 41 Conn.App. 382, 386-87 (1996), the Appellate Court thus reversed a trial court ruling that § 46b-46(b) confers jurisdiction only over the original complaints for dissolution, annulment, legal separation or custody and is not applicable to postjudgment motions regarding alimony. This court concurs with the conclusion of Judge Alander in Scharer v. Scharer, Superior Court, Judicial District of New Haven, Docket No. FA01-0451858 (September 12, 2001), that

Section 46b-44 of the General Statutes provides as follows:


"(a) On a complaint for dissolution, annulment, legal separation or custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant are unknown to the plaintiff, any judge or clerk of the Supreme Court or of the Superior Court may make such order of notice as such judge or clerk deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with. Nothing in this section shall be construed to affect the jurisdictional requirements of chapter 815p in a complaint for custody.

"(b) The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony meets the residency requirement of section 46b-44."

The court in Cashman based its decision not only on the text of § 46b-46, but on the distinct purposes served by its separate subsections. The court found that subsection (a) confers jurisdiction upon a court to deal with complaints for dissolution, annulment, legal separation or custody when the defendant is a nonresident or his whereabouts are unknown. Subsection (b) in contrast is a longarm statute applicable to all matters concerning alimony and is not limited to complaints for dissolution, annulment, legal separation or custody.

Based on the evidence offered, the court finds that the defendant has not complied with the court order that he pay weekly alimony of $250 per week since July 1999, that he owes an alimony arrearage on that order of $88,500, and that he has not provided the plaintiff with the annual income tax returns as ordered by the judgment. The non-appearing defendant has not offered any reasonable explanation for his failure to comply with the judgment. The court finds him in wilful disobedience of the court's orders and thus in contempt, and the plaintiff's motion is granted.

The court further finds that an order of interest under General Statutes § 37-3a(a) on the unpaid alimony is appropriate. Under that statute, a court may award interest for the detention of money after it becomes payable. As the court noted in Maloney v. PCRE, LLC, 68 Conn.App. 727, 755, 793 A.2d 1118 (2002),

Section 37-3a(a) provides, in pertinent part, as follows: "Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable."

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.

(Internal quotation marks omitted.) An allowance of interest is at the discretion of the trial court. Mihalyak v. Mihalyak, 30 Conn.App. 516, 620 A.2d 1327 (1993). An award of interest under § 37-3a because of a "wrongful" detention of funds, moreover, does not require any venal or sinister purpose in failing to pay sums due. The defendant has had use of the alimony moneys he did not pay, and the plaintiff has not. Applying the statutory criterion under § 37-3a, the court finds that the plaintiff's failure to pay alimony when due was "wrongful." The "date upon which the wrongful detention began" is the last day of each month for which the plaintiff failed to pay alimony. Accordingly, the court exercises its discretion to award the plaintiff statutory interest in the amount of $25,537.

Finally, an award of counsel fees is appropriate, pursuant to General Section General Statutes § 46b-87. Plaintiff's counsel requested a fee award of $1,500, based on an hourly rate of $200, two hours in court on May 11, and additional hours necessary to effectuate this order. The court finds plaintiff's request here to be fair and reasonable, if not conservative, under the present factual circumstances. Plaintiff's counsel will undoubtedly spend considerable time to enforce this order on the out-of-state defendant.

Section 46b-87 of the General Statutes provides, in pertinent part, as follows: "When any person is found in contempt of an order of the Superior Court entered under section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person."

In addition to the wage execution already ordered to enforce the defendant's weekly alimony obligation, the plaintiff has requested a wage withholding order for weekly payments of $250 per week toward the amount now owed, consisting of the arrearage of $88,500, interest thereon of $25,537, and counsel fees of $1,500 and totaling $115,537. The plaintiff testified that defendant now works at an assisted living facility but she provided no information about his current income or assets. The court thus does not have a sufficient basis to decide how to order payment on the arrearage. Plaintiff is left to her other remedies at law and equity to enforce the order regarding the arrearage and to collect said amount which may include, at her election, the procedures available under the Uniform Interstate Family Support Act, § 46b-212 et seq. of the General Statutes.

The Superior Court of the State of Connecticut, as the tribunal making the original alimony order between these parties, has continuing exclusive jurisdiction, pursuant to General Statutes § 46b-212h, over this order of spousal support. Subsection (f) of that statute provides, in relevant part, as follows: "[t]he Family Support Magistrate Division or Superior Court issuing a support order consistent with the law of this state has continuing exclusive jurisdiction over a spousal support order throughout the existence of the support obligation." In the exercise of that jurisdiction, this court authorizes the Family Support Magistrate Division of the State of Connecticut, if requested by plaintiff, to request the tribunals of the State of Florida to enforce this order regarding the alimony and arrearage, as authorized by General Statutes § 46b-212i(a), which provides that "[t]he Family Support Magistrate Division may serve as an initiating tribunal to request a tribunal of another state to enforce or modify a support order issued in that state."