Monette v. Monette

• Decision Date: 26 June 2007
• Docket Number: No. 25597.,25597.
• Citation: 102 Conn.App. 1,924 A.2d 894
• Court: Connecticut Court of Appeals
• Parties: Carole A. MONETTE v. Claude MONETTE.

924 A.2d 894

102 Conn.App. 1

Carole A. MONETTE v. Claude MONETTE.

No. 25597.

Appellate Court of Connecticut.

Argued October 18, 2006.

Decided June 26, 2007.

Norman A. Roberts II, with whom was Anthony L. Cenatiempo, for the appellant (defendant).

Judith Ellenthal, with whom was Keenan-Marie McMahon, Stamford, for the appellee (plaintiff).

SCHALLER, ROGERS and MIHALAKOS, Js.

MIHALAKOS, J.

The defendant, Claude Monette, appeals from the judgment of the trial court rendered in favor of the plaintiff, Carole A. Monette, his former wife. The defendant claims that the court improperly (1) found that he had obtained gainful employment subsequent to the parties' divorce, (2) failed to make a finding of a substantial change in circumstances that warranted modification of child support, (3) relied on his failure to exercise his parenting time as a basis for modifying child support, (4) failed to base its child support orders on net income and (5) awarded counsel fees to the plaintiff. We conclude that the plaintiff's evidence was insufficient to support the court's determination that the defendant was gainfully employed.¹ Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant's appeal. The parties were married on December 11, 1993, in Gloucester, Massachusetts. Two daughters were born of this marriage, both of whom are still minors, now ages nine and seven. The parties resided in Canada when the divorce proceedings began, but the plaintiff has since moved to Connecticut with the minor children. The defendant resides in Canada.

The family division of the superior court of the province of Quebec, located in the district of Montreal, rendered judgment of divorce on August 19, 2003. As agreed upon by the parties, the judgment of divorce incorporated by reference a separation agreement known as the consent to judgment.² In accordance with the consent to judgment, the parties agreed, inter alia, that the plaintiff would have full legal and physical custody of the children and that the defendant would have liberal visitation privileges. The consent to judgment gave the defendant liberal access to the minor children in that the children would spend approximately one third of each year with him. The parties attached a proposed visitation schedule for 2003 to the consent to judgment.³

The parties further agreed that each parent would assume the day-to-day living expenses of the minor children when the children were under their respective care. At the time of the divorce decree, neither of the parties was employed, and under Canadian law, the family court is not permitted to issue child support orders if a parent is earning fewer than $10,000 Canadian (CDN) a year. Article 2.04 of the consent to judgment, however, provided that the parties would "make diligent efforts to resolve the child support issue prior to Court intervention as soon as the [defendant] has ascertained gainful employment."

On December 9, 2003, the plaintiff filed an application with the Superior Court in the judicial district of Stanford-Norwalk for an order to show cause, alleging that there was a substantial change in circumstances and that the defendant had failed to comply with certain terms of the consent to judgment. On that same day, the plaintiff also filed motions for modification of child support and contempt post-judgment. The plaintiff's motion for modification of child support alleged that the defendant had funds available to him from the sale of the parties' family residence in Canada and that he had "other interest income available to him to pay child support." The motion for modification did not seek attorney's fees. The plaintiff's motion for contempt alleged that the defendant failed to pay for his portion of the cost associated with obtaining health insurance for the minor children, as well as the children's medical expenses. In this motion, the plaintiff also requested that the court order the defendant to provide documentation indicating that the children had been designated as the sole beneficiaries of the defendant's life insurance policies and retirement plans. Finally, the plaintiff's motion for contempt sought attorney's fees.

Subsequently, after having been granted several continuances in this matter, the plaintiff, on March 3, 2004, filed revised motions for modification of child support and for contempt.⁴ The new motion for modification of child support alleged that there had been a substantial change in circumstances in that the defendant had failed to exercise his rights of visitation with the minor children and that he therefore had not helped the plaintiff with the children's day-to-day living expenses. Additionally, the plaintiff claimed that the defendant violated article 2.05 of the consent to judgment⁵ in that he received gross income of $413 on a weekly basis in the form of unemployment benefits and had failed to notify the plaintiff. Similar to the December, 2003 motion for modification, this new motion did not seek attorney's fees. The new motion for contempt was essentially the same as the motion filed by the plaintiff in December 2003, except that it also alleged a violation of article 2.05.

The court considered the plaintiff's application for an order to show cause, as well as her March, 2004 motions for modification of child support and for contempt, at a hearing that was held on June 16, 2004.⁶ At this hearing, the court accepted into evidence income tax returns filed by the parties for the years 1993 through and including 2003, representing the start and end of the marriage.⁷ Regarding the 2003 income tax return, the plaintiff testified that subsequent to the divorce decree, "the Canadian court ordered [the defendant] to produce his [2003] income tax return, and we discovered that indeed he was making—earning money." The plaintiff, however, explained that the defendant never fully complied with the Canadian court order because he produced only a Canadian income tax return for the year 2003 and not a United States income tax return. The plaintiff testified that she did not know what the defendant's United States income would be for the year 2003. The Canadian tax return indicated that the defendant had CDN $28,000 in income,⁸ and the plaintiff's counsel stated that this figure represented net, rather than gross income. During the hearing, the plaintiff's counsel confirmed that the issue was not whether the defendant had committed a fraud on the court when he declared that he had no income at the time of the divorce proceedings, but whether he had earned money since the divorce.

At the hearing, the plaintiff claimed that because the defendant failed to exercise his visitation rights in accordance with the visitation arrangement that was devised by the parties and made a part of the consent to judgment,⁹ she became responsible for more of the children's day-to-day living expenses than was anticipated by the parties' agreement and must now seek child support. The plaintiff testified that because of the defendant's employment history, she expected to receive child support from him "in the very near future." She further testified that when the parties executed the consent to judgment, the defendant "was out of work, and he's good at what he does, so, worst case scenario, we thought he would pick something up . . . . [W]hen he was employed before . . . he would do chairman of the board, and they paid him to attend that meeting; they paid him $150,000 a year to just show up one night a week So, I expected . . . he'll do something like that, and he said he was looking for a job." In support of her claim, the plaintiff submitted financial affidavits that indicated the costs she had incurred in caring for the minor children. In addition to selling her furniture and other personal property to provide income, the plaintiff testified that she currently receives several forms of state aid as a means of support for herself and the minor children.

Immediately after the hearing, the court made several findings with regard to the evidence presented. Concerning the plaintiff's motion for modification of child support, the court found, on the basis of the defendant's earning capacity, educational background, prior job history and the ten year period of tax returns submitted by the plaintiff, that the defendant had the ability to earn $300,000 annually. On the basis of its findings, the court ordered the defendant to pay to the plaintiff $5000 each month for child support, retroactive to December 18, 2003, in accordance with the date on which the plaintiff's motions initially were served on him. The court, however, explicitly found that the defendant did not have any other financial resources available to him that would justify deviation from the child support guidelines. The court also awarded the plaintiff $22,391.30 in attorney's fees in accordance with General Statutes § 46b-62.¹⁰

Concerning the plaintiff's motion for contempt, the court concluded that it could not issue any contempt orders because it lacked personal jurisdiction over the defendant. The court found that the defendant was not served with process in Connecticut and that neither he nor his counsel had filed an appearance in Connecticut. The court, however, did make findings on the basis of the allegations of contempt in the plaintiff's motion. The court found that the defendant owed the plaintiff $302.45, representing his share of the children's medical expenses, pursuant to article 2.08 of the consent to judgment.¹¹ Additionally, the court expressly found that the defendant had obtained gainful employment and that he failed to maintain life insurance policies for the benefit of the children or to provide the plaintiff with documentation of the same, as required by article 2.03 of the consent to judgment.¹² Finally, the court found that the defendant was...