WATSON v. WATSON, No. FA-95-0049854S (Apr. 1, 2005)

DRISCOLL, JUDGE.

The court is presented with two post-dissolution judgment motions, the plaintiff's motion for contempt dated August 31, 2004, and the defendant's motion for modification of child support dated July 12, 2004. Prior to these two motions, the file indicates that the parties have filed more than two hundred pleadings in this highly contentious action.

The court, having considered the evidence, including the stipulations of the parties, their respective financial affidavits, as well as reviewing the file and their proposals, makes the following findings of fact and orders.

The marriage of the parties was dissolved on June 5, 1997. Primary physical residence of the one minor child was awarded to the defendant mother. On November 25, 2002, the custody and support order was modified such that primary physical residence of the child was awarded to the plaintiff father, and the defendant was ordered to pay child support to the plaintiff in the amount of $124.00 per week. Subsequently, the court ordered that the defendant be given a $125.00 credit against any child support obligation for every trip the defendant made to Connecticut for purposes of visitation. There has been one visitation trip. The defendant made sporadic payments of child support, and as of December 3, 2004, was entitled to $1,164.00 in child support credits.

The plaintiff had previously provided the defendant with a note secured by a mortgage in the amount of $23,000.00, which represented the balance due from the plaintiff to the defendant pursuant to the trial court's award of lump sum alimony. The principal of $23,000.00 was due in full on September 1, 1999, with simple interest in the amount of 10% per year accruing on any unpaid principal beginning on September 1, 1999. The CT Page 5853 plaintiff has made no payments of principal or interest.

Neither party advanced any reason for their respective nonpayment, other than negotiations over set offs. However, the court finds that the defendant reasonably believed she was entitled to a set off against her child support obligation for the substantial amounts due her by the plaintiff. Her failure to pay was not a willful violation of the court order. While the motion for contempt is denied, therefore, that still leaves the issue of how best to secure the underlying judgment and the required payments.

Prior to addressing the equities of the case, the court must first consider the defendant's motion to modify. When the defendant was ordered to pay child support, the plaintiff showed a net income from his principal employment of $380.00, and the defendant's net income was $558.01. As of December 3, 2004, the defendant's weekly net income was $529.28, while the plaintiff's weekly net income from his principal employment was $675.00. The court finds the increase in income earned by the plaintiff to be a substantial change in circumstances warranting modification. The court accepts the guidelines submitted by the plaintiff as the more reliable, since the defendant is seeking credit for excess overtime earned by the plaintiff. Accordingly, the defendant's child support obligation is modified to $103.00 per week, effective July 12, 2004.

Both parties have proposed using the defendant's child support obligation as a set off against the $23,000.00 note, and the court finds this to be an equitable arrangement. Effective November 25, 2002, the defendant owed the plaintiff $124.00 per week. The defendant is entitled to a credit of $1,164.00. The defendant is ordered to pay the sum of $76.00 to the plaintiff immediately. This will bring her total child support credit to $1,240.00 or ten weeks of payment. The plaintiff has proposed amortizing the $23,000.00 at 10% annual interest with monthly payments of $533.20, which equals a $124.00 weekly obligation. Giving the defendant credit for the 10 weeks paid, the set offs should commence February 10, 2003. The court orders that the unpaid child support be amortized against the outstanding $23,000.00 principal at 10% annual interest rate with the first payment due on February 10, 2003, with monthly payments of $533.20 until July 12, 2004, at which time the monthly payment will change to $442.90. This change reflects the child support modification. If the entire debt is amortized prior to the minor CT Page 5854 child's 18th birthday, any child support which the plaintiff is to receive will be set off against the interest on the $23,000.00 note unpaid as of November 25, 2002, which interest the court finds to be $7,441.92. The defendant's counsel is ordered to prepare an amortization schedule reflecting the above orders and to submit the schedule to plaintiff's counsel for review. If accepted by plaintiff's counsel, the schedules will be submitted jointly to the court for review and approval. If the parties cannot agree on an amortization schedule, each shall submit a proposed schedule to the court for review and possible acceptance. The court understands that this plan contemplates no further modifications, but does not operate as a bar against future modifications should a change in circumstances warrant such modification.

This case shall be docketed for review on May 2, 2005 at 9:30 a.m. The parties are excused. In the event that counsel are unable to submit a stipulated agreement regarding an amortization schedule, counsel will appear and present their proposed schedules for review.

By The Court

Driscoll, J. CT Page 5855