Kelly v. Kelly, No. FA 88-0506570-S (CT 3/30/2005)

• Decision Date: 30 March 2005
• Docket Number: No. FA 88-0506570-S,FA 88-0506570-S
• Court: Connecticut Supreme Court
• Parties: Joanne M. Kelly v. James S. Kelly Opinion No.: 88229

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Unpublished Opinion

Joanne M. Kelly v. James S. Kelly Opinion No.: 88229

No. FA 88-0506570-S

Superior Court of Connecticut

Judicial District of New London at New London

March 30, 2005

MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR CONTEMPT, P.J. (# 119) DEFENDANT'S MOTION FOR CONTEMPT, P.J. (#125)

SWIENTON, JUDGE.

The marriage of the parties was dissolved on February 2, 1989. The judgment provided that the defendant would pay the sum of $150 per week in child support on behalf of the parties' one minor child, Shannon, born August 31, 1986. Also provided for in the judgment was the conveyance of the marital home by the defendant to the plaintiff with the plaintiff executing a mortgage in favor of the defendant in the amount of $17,600 at "five (5%) percent interest payable on the earliest of the following occurrences: the parties' youngest child attaining the age of 18, the wife's remarriage, the wife's cohabitation with an unrelated adult male, the sale of [the marital home], the wife's death, or her voluntary relocation from the [marital home]."

On November 6, 1990, the defendant filed a motion for modification by citation for a modification of the child support payment due to the defendant's unemployment, asking that the child support order be "modified to $35.00 per week until such time as defendant obtains employment at which time support order will return to $150.00 per week." (Motion for modification by citation, #112). On December 10, 1990, the parties reached an agreement and a stipulation was entered by the court stating "Parties agree that starting this week that father defendant's child support will be reduced to $60 per week. Upon re-employment he has 7 days to notify ex-wife. Support will increase as does defendant's income. Until defendant's support level reaches that which he paid at the dissolution of the marriage. A note from the wife to husband will be reduced the amount of arrears $ 1,360—from $17,600 to $16,240." (Austin, J.) (Motion to modify judgment order, #112). The order was hand written by the court. A typed order was entered on the original judgment and was transcribed as follows:

"December 10, 1990: The within judgment is modified so that the order for child support shall be $60.00 a week. The defendant shall notify the plaintiff within seven days of his re-employment. Child support will increase as does the defendant's income until support reaches $150.00 a week. The mortgage in favor of the defendant shall be reduced by $1,360.00 from $17,600.00 to $16,240.00." (Judgment dated February 2, 1989). Both parties agree to the following facts: The defendant paid the plaintiff child support in the amount of $60 until January 24, 1991. He then paid $70 per week in child support until July 22, 1991, at which time he decreased the child support to $60 per week. Then on October 13, 1992, he increased the child support payment to $94 per week, which he paid for twelve years until August 31, 2004, when Shannon reached eighteen.¹

On August 12, 2004, the plaintiff filed a motion for contempt, postjudgment, alleging that "support should automatically increase to original support level [in accordance with State of Connecticut Child Support Guidelines] upon Defendant's reemployment."² (Motion #119). She further alleges that the defendant consistently refused to provide any information or documentation regarding his income or "to increase his support in accordance with either Child Support Guidelines or with Judge Austin's modification order of December 10, 1990." Apparently in anticipation of the note and mortgage becoming due on August 31, 2004, the plaintiff asks that any arrearage found owing by the defendant be set off against any amounts otherwise owing to the defendant from the plaintiff.

The defendant filed an objection to the motion for contempt raising the defenses of equitable estoppel, laches and waiver. He also filed a motion for contempt, in that the judgment provided for the payment of the note upon the first of numerous conditions, one of which occurred, namely, the minor child, Shannon, turning eighteen years of age. He alleges that she has willfully and maliciously failed to make the payment to the defendant in the amount of $16,240, along with 5% interest per annum.

The court will first address the plaintiff's motion for contempt.

"Contempt proceedings are a proper means of enforcing a court order of child support. Unlawful failure to pay court-ordered child support as it becomes due constitutes indirect civil contempt." (Citations omitted.) Mulholland v. Mulholland, 31 Conn.App. 214, 220, 624 A.2d 379 (1993). "In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 772 A.2d 681 (2001) "Although it has not been settled by our Supreme Court as to whether the burden of proof on a contempt motion in a family matter is proof by clear and convincing evidence or by a fair preponderance of the evidence, the burden is upon the movant." Velez v. D'Alessandro, Superior Court, judicial district of Tolland, FA 91-0947807S (September 9, 2002). See, Cologne v. Westfarms Associates, 197 Conn. 141, 152, fn. 11, 496 A.2 476 (1985); Issler v. Issler, 50 Conn.App. 58, 66, 716 A.2d 938, cert. granted in part, 247 Conn. 921, 722 A.2d 810, reversed, 250 Conn. 226, 737 A.2d 383 (1998).

The plaintiff argues both parties understood that the defendant first had an obligation to report any increases in his income to the plaintiff, and second, to increase his child support to a level representing 24 percent of his net income until his child support payment reached $150, the original child support payment ordered under the dissolution judgment. She indicates that this understanding is evidenced by a note given by the defendant to the plaintiff concerning changes in his income in July 1991. In the note, the defendant wrote,

"Enclosed is a check for $88. $60 is for this week instead of $ 70 due to my new job only pays a couple hundred dollars till commissions rise above that amount. When they do I'll be sending you 24% of that number—Hopefully that will not be too long. The $28 is for Shannon's bill." (Plaintiff's Exh. 1)

The plaintiff contends she repeatedly requested from the defendant proof of his income, however, the only evidence of this contention provided to the court was a letter dated April 7, 1992, in which she stated that the December 10, 1990, modification required him to verify his income for the year 1991. "This information should include W-2 forms from each job you held, verification of unemployment compensation and rental income, etc., along with pay stubs verifying acceptable deductions, to justify a continued amount of $60 per week. At the same time, a copy of your most recent pay check is requested to verify that the above amount is still valid." (Plaintiff's Exh. 4). The defendant believes he showed her a W-2 in the early 1990s, but has no clear recollection.

First, the court does not find that the defendant had any affirmative duty to furnish proof of his income to the plaintiff. There was no order of the court which provided for him on a regular basis, or on any basis, to verify his income in any given year. Second, there is no indication anywhere that the original child support order or the subsequent modification was tied in any way to the Child Support Guidelines. Third, there is no indication that the child support figure was tied to a percentage of his gross income, net income, a part of his commissions, etc. The original child support order was $ 150. His gross income per his financial affidavit filed the same day as the judgment was $992.57 and his net income was $ 751.03. Twenty-four percent of the net income would have been $ 180, however, the initial order for child support was $150.³

In examining the note which the defendant sent to the plaintiff the court does not find any evidence which would assist the court in determining the intent of the parties. There is a reference to the figure of twenty-four percent, however, it does not indicate what the twenty-four percent is to be used against. Is it gross income? Net income? The commission amount which is the amount above the "couple hundred" dollars? The plaintiff provided the court with a chart (which was not admitted into evidence) reflecting for each year, the gross yearly earning per the tax returns, the gross weekly earnings per the tax returns, support paid, and a figure which allegedly represents 24 percent of "net income."

The court only received into evidence W-2 or 1099 statements for the years 1992, 1993, 1995, and 2000. (Plaintiff's Exhibits 8, 9, 11, and 12), and the court only received a Schedule C to a tax return for the year 1998. (Plaintiff's Exh. 11). The court also received a social security statement which indicated the defendant's gross taxed social security earnings from 1974 through 2002. The problem facing the court with all these figures is that the gross earnings shown on the chart provided to the court does not match up to any of the exhibits entered as evidence.

To make matters more difficult, our case law is well settled that a court must base child support on the available net income of the parties, not gross income. See, Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979); Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974); Evans v. Taylor, 67 Conn.App. 108, 111, 786 A.2d 525 (2001); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001). The plaintiff provided this schedule to the court, not as an exhibit, and it contained a footnote that indicated the net income figure was arrived at by taking 85 percent of the gross income per the tax returns and social security reporting statements. There was no evidence to...