Ardizzone v. Bailey

• Decision Date: 09 October 1987
• Citation: 542 A.2d 806
• Parties: Clare Anne ARDIZZONE, Petitioner, v. William R. BAILEY, Respondent. . Submitted:
• Court: Delaware Family Court

Page 806

542 A.2d 806

Clare Anne ARDIZZONE, Petitioner, v. William R. BAILEY, Respondent.

Family Court of Delaware,

New Castle County.

Submitted: Oct. 9, 1987.

Decided: Oct. 29, 1987.

Patricia A. Dailey, of the Atty. General's Office, Wilmington, for petitioner.

Christine K. Demsey, of Waserstein & Demsey, Wilmington, for respondent.

ABLEMAN, Judge.

Before the Court is a Reciprocal Petition for Non-Support filed by petitioner, Clare Anne Ardizzone, naming as respondent William Bailey. The petition is filed pursuant to the Uniform Reciprocal Enforcement of Support Act ("URESA") and seeks child support for the parties' minor child, Dona Elizabeth Bailey, born 12/3/74.

Also before the Court is a Petition for Specific Performance Under Separation Agreement filed by William Bailey naming as respondent Clare Ann Ardizzone. The petition seeks specific performance of an Agreement into which the parties entered on December 7, 1976. Specifically, the petitioner seeks enforcement of the provision permitting him to claim the parties' child as an exemption for federal and state income tax return purposes. The petition further requests the Court to enforce the provision permitting the parties to "renegotiate from time to time the amount of child support payable by Husband based upon their child's needs and Husband's resources and earnings" and alleges that respondent has failed and refused to renegotiate support when Husband's resources and earnings could not support the original sum of $250.00 per month.

On the date scheduled for hearing before Master McDonough, the Master held an office conference with counsel at which time it was agreed that the Interim Order of Support of $250.00 per month, which was entered on March 12, 1987, should be affirmed and it was therefore so ordered. With respect to the question of arrears, the Master referred this matter to a Judge over the objection of counsel for respondent William Bailey. This is the time the Court set for a hearing on the matter of arrears as referred by Master McDonough. In addition, the Court consolidated the Petition for Specific Performance with the arrears petition filed pursuant to URESA, since the question of arrears also involves the interpretation of the Separation Agreement and whether or not there has been a breach of that Agreement.

Prior to this hearing, Mr. Bailey filed a Motion to Dismiss seeking to dismiss the URESA action for lack of jurisdiction. The Motion also seeks dismissal pursuant to Family Court Rule 37(b), for failure of the Division of Child Support Enforcement to submit documents as required by this Court's Order. In the Motion, Mr. Bailey argues that the Court does not have jurisdiction for the enforcement of a Delaware Separation Agreement under URESA. Pursuant to 13 Del.C. § 601 et seq., this Court has jurisdiction to enforce a provision of a Separation Agreement that provides for the support of a minor child and to determine arrearages that have accrued pursuant to the Separation Agreement.

Mr. Bailey also contends that he did not receive the tax returns of Ms. Ardizzone that were required to be produced by Order of this Court dated August 17, 1987. In response, counsel for Ms. Ardizzone indicated that the returns had in fact been provided for the years 1980 through 1986 and that the delay in providing those returns had been explained to Mr. Bailey's counsel. The delay resulted from the fact that all requests for information from reciprocal cases must first be processed through the individual's reciprocal state agency. At trial, counsel for Mr. Bailey objected again due to the fact that only the front page of the returns had been provided and she required the second page of the return and any attachments or schedules to determine the amount, if any, of benefits received by Ms. Ardizzone in claiming tax exemption for the child. The Court refuses to dismiss the petition on the basis of Ms. Ardizzone's failure to provide the second pages, as I am satisfied from her testimony that she believed that she was in compliance by providing the front page, and that any need for the additional pages can be remedied by a requirement that they be provided, subsequent to trial, if the amount of such tax savings becomes relevant to any of the issues in this litigation. The Motion to Dismiss is therefore denied.

At the hearing, the Court heard testimony from Ms. Ardizzone, who will hereafter be referred to as "Mother", and from Mr. Bailey, who will hereafter be referred to as "Father", regarding their understanding of the Separation Agreement and the events that occurred since it was executed by the parties in 1976. The parties agree that the Agreement, which provides that Father should pay $250.00 per month child support, specifically indicates that, "the parties agree to renegotiate from time to time the amount of child support payable by Husband based upon their child's needs and Husband's resources and earnings." The evidence establishes that Father paid $250.00 per month pursuant to the Agreement for a period of time until approximately May 1981. Around that time the parties apparently had a disagreement about whether or not the child could fly on an airplane by herself to Delaware from Michigan, where the Mother had relocated with her new husband. In June, Father stopped payment on his $250.00 support check and instead sent her only a $125.00 payment. Mother was never contacted directly, or through her attorney, nor did Father's attorney ever contact either to request that the support be modified as permitted under the Separation Agreement.

Father claims that he did attempt to renegotiate with Mother. The evidence establishes, however, that, while he may have telephoned her once in 1981, obviously without results, he instead took it upon himself to modify the amount of child support as is apparent from his "stop payment" of the $250.00 support check, his tender of a $125.00 check instead, and a letter written shortly thereafter dated July 14, 1981, in which Father concluded by stating, "[f]rom now on I intend to send you what I can afford and I feel is reasonable, if you choose not to accept the checks I send, that is your matter. Any returned checks will be directly deposited into a savings accounts in Dona's name."

Mother was not satisfied with this arrangement and, as a result, for a period of time she refused to accept the checks. Finally, she started accepting them because the cost of raising her child was increasing and she began to realize that it was "cutting off her nose to spite her face" not to accept at least a partial payment towards the amount of support that was due under the Separation Agreement. Eventually, she filed the instant support petition through the support agency in Michigan under the Uniform Reciprocal Enforcement Support Act. Prior to filing the support action, however, she did write a letter to Father indicating that it was unfortunate they were unable to resolve the support matter and that she hoped that they would be able to settle it amicably. In return, she received a response from Father indicating specifically what he had earned during the years 1977 and 1985, and the amount of child support that he had paid, including the amounts he claimed for travel expenses during this time. Also contained in the letter are statements regarding his dissatisfaction with Mother's perception of the shared custody arrangement, and an indication that he could not afford to pay the amount of support that he was required to pay pursuant to the Separation Agreement. Father concluded by writing, "[B]elow are my intentions for contributing to Dona's support for the next three years" and thereafter a list of separate amounts that he would pay each month. He also included in the enumerated instructions, "[y]ou may continue to use the IRS deduction."

Mother testified that her earnings from 1981 to the present time were below her actual earning capacity as a result of her decision to work only part time in certain years. Fortunately she has been supported by her husband, who is a psychologist, and has thereby been able to provide for the needs of the family, including Dona. Mother's current annual salary will be $19,500.00. Although Mother did not earn much more than what Father was earning during the years in question, and, in some years even less, she is not requesting a modification in the amount of child support on that basis. She merely requests that Father be required to pay support in accordance with the Agreement for the years that he determined, unilaterally, to pay less.

Father testified that he presently lives in Arden with his wife and her adult son, who is employed part time. Father's wife is now partially disabled and works only part time. Father testified that after separation custody was shared on a one week/two week basis, but the situation changed when Mother moved to Ann Harbor, Michigan. From 1981 through 1982 the child was with Father for approximately six weeks but thereafter she has stayed with him only about three weeks each year due to his working schedule. Father claims that he bore the cost of airline tickets for those trips. From records that he could locate, he reports that he has paid approximately $4,300.00 in airfare since Mother moved to Ann Arbor in 1977. He also states that he has purchased clothing for her on occasions when she is with him. Mother claims that she too paid airfare for the child, particularly when the child was too young to fly alone, and she was required to accompany her on flights for which she purchased her own tickets.

Father contends that it was the intent of the parties that the Agreement could be modified, and that his income, particularly in 1982 and 1983, was drastically lower than his income at the time that the support Agreement was negotiated due to failure in his business ventures. He argues that Mother's refusal to renegotiate the support amount justified...