NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.
COUNSEL:Hilary B. Miller, Greenwich, CT, for plaintiff Esperanza Filipov.
Richard L. Albrecht, Cohen and Wolf, P.C., Bridgeport, CT, for defendant-employer Terex Corporation.
JUDGES: Susan S. Reynolds, Family Support Magistrate.
OPINIONBY: Susan S. Reynolds
OPINION: MEMORANDUM OF DECISION
This matter came before the Court pursuant to a summons for Contempt Proceedings Upon Employer's Failure to Comply with Withholding Order for Support dated 8/10/99. Said application for contempt was served on Eric Cohen, Esq as agent for the employer, Terex Corporation (Terex). Said application was served on Attorney Cohen (Cohen) directing "...the above named employer or its responsible agent..." to appear before the Court on October 18, 1999 to show cause why said employer should not be held in contempt for failure to implement the income withholding as to Filip Filipov, its employee.
On October 18, 1999, plaintiff appeared with counsel and defendant appeared through counsel. Due to the heavy volume of other court business and based on counsels' representations that a hearing on the matter would take several hours, the matter was continued to November 15, 1999 for special hearing. Said date was the next scheduled UIFSA date for the Stamford/Norwalk Judicial District.
A review of the file, the testimony of witnesses, and the exhibits presented by the parties reveal the following history:
Esperanza Filipov Esperanza) and Filip Filipov (Filip) were divorced by order of the Circuit Court of the Fifteenth Judicial Circuit of Florida on August 15, 1990. On June 6, 1997 the Florida Circuit Court ratified the parties' amendment to the judgement and ordered, inter alia, that Filip shall pay to Esperanza the sum of $ 3251 per month as and for lifetime alimony. Said Court also found an arrearage due to Esperanza in the amount of $ 46,505 for unpaid support and ordered Filipov to pay said amount. The Court also awarded Esperanza $ 20,000 in counsel fees to be paid by Filip. Said order was appealed to the Florida Court of Appeals, which court affirmed the trial court's judgement. The Florida Supreme Court denied review without opinion.
On January 2, 1998, the Florida Circuit Court issued an income withholding order. Same was forwarded to PPM/Terex Cranes Inc. (PPM) in Conway, South Carolina. PPM refused to implement the income withholding as "payroll is not handled through this branch of Terex Corporation." PPM then forwarded the income withholding to Terex, its "corporate headquarters" for action. (See UIFSA file)
On September 11, 1998, the Florida Circuit Court issued another income withholding order. Same was forwarded to Terex at its corporate headquarters in Westport, Connecticut. Terex refused to comply with same. (See UIFSA file)
In early 1999, the Florida order was registered in the State of Connecticut and proper notice of same has been given to all parties. On April 30, 1999, the Connecticut Support Enforcement Division (SED) served Terex with an income withholding order pursuant to C.G.S. 52-362(f) and (n). Terex has refused and continues to refuse to implement the income withholding (see Exhibit 1, 1/24/00), which refusal brings us to the matter before the Court, i.e. the application for a contempt finding against Terex for its failure to comply with a valid income withholding order issued pursuant to C.G.S. 52-362(f) and (n) and for appropriate remedies for its alleged contemptuous behavior pursuant to C.G.S. 52-362(f) and (m).
The main thrust of Terex's claims is that Terex is not an "employer" within the meaning of C.G.S. 52-362 and is therefore not bound by the requirements of that statute. To determine if Terex is, in fact and in law, the employer of Filip, the Court has reviewed various statute sections including C.G.S 52-362(a)(3), (4), and (5) and pertinent case law. The case of Bentz v. Halsey, 54 Conn. App. 609, 736 A.2d 931 (1999) is of particular interest in that the fact pattern in the Bentz case is on point as to the employment relationship between the parties. See also,_ Community for Creative Non-Violence v. Reid, 490 U.S. 730, 104 L. Ed. 2d 811, 109 S. Ct. 2166, Alswanger v. Smego, 1999 Conn. Super. LEXIS 1052, No. X05-CV-92-0125294-S, Carothers v. Butkin Precision Mfg., 1993 Conn. Super. LEXIS 2164, No. CV89-364339S.
C.G.S. 52-362(a)(4) states:
"(4) "Employer" means any person, including the Labor Commissioner, who owes earnings to an obligor..."
The petitioner invites the Court's attention to a Contract of Employment between Terex and Filip dated September 1, 1999 (Exhibit 2, 11/15/99). Said contract is between Terex Corporation ("the Company") and Flip Filipov ("the Executive") and is signed by Ronald M. De Feo, Chairman/CEO of the Company and Filip Filipov as Executive. It should be noted that the 5 year employment contract was entered into September 1999 despite the fact that PPM had been paying Filip's wages prior to that date. The Employment Contract is replete with provisions that clearly establish that the parties do have an employer/employee relationship, e.g. "the Executive will continue his employment with the Company" (Sec 1/1); "...it is his responsibility to run the Company's lifting business..." (Sec 1/1); "The Executive shall devote his entire working energy to the Company" (Sec 1/2); "The Executive is granted shared power to represent the Company" (Sec 2/1); "The Executive will preserve unconditional secrecy...This duty of secrecy continues after termination of the contract of employment" (Sec 3); "The Executive shall receive an annual salary of $ 360,000...reviewed and adjusted with Board of Directors' approval" (Sec 4/1(a)); receipt of stock options and awards "...as other employees of the Company" (Sec 4/4(b)); participation in the bonus scheme of the Company, change in control provisions, and the Company's Long-Term Incentive Plan (Sec 4/1© and (d) and (e)); contributions to the Company's 401(k) Retirement Plan and Deferred Compensation Plan (Sec 8/1 and 3); provisions for termination of the employment contract (Sec 9, 10 and 11).
There is no doubt that this document is a valid employment agreement creating an employer/employee relationship between Terex and Filip. There is no assignment of this employment contract to PPM nor is there an independent employment contract between PPM and Filip. Cohen, as Terex's Senior Vice President, Secretary and General Counsel, testified that in the event of any breach of the employment contract Terex, not PPM, would be liable for Filip's wages.
Respondent also argues that Terex cannot comply with the income withholding because Terex no longer pays Filip's wages. The testimony at trial revealed that at the time the Florida courts sent the income withholding to PPM in South Carolina, Filip was in fact living and working in South Carolina but was being paid by Terex in Connecticut. Terex received notice in May 1999 of the income withholding order in Connecticut. In July or August 1999, PPM began paying the wages of Filip.
The relationship, or lack thereof, between Terex and PPM was the subject of considerable testimony by both parties. PPM is a subsidiary of Terex. Terex owns ninety percent of the stock of PPM and appoints three of its four directors. Terex has more than sixty subsidiaries and other business entities. A group of these subsidiaries and entities are referred to as "Terex Lifting". Filip is President of Terex Lifting (see Exhibit 1, 11/15/99) and his duties include managerial responsibility for all of the businesses under the umbrella Terex Lifting. Cohen testified that recently Filip spent a few months managing another of Terex's subsidiaries, Cedarapids, Inc.. PPM continued to pay Filip's wages although Cedarapids, Inc. is a subsidiary of Terex, not PPM. The Notice of Annual Meeting of Stockholders of Terex Corporation (Exhibit 1, 11/15/99) states clearly that Filip has an employment agreement with Terex (p.17) and is considered a "Salaried Employee" (p.16).
It is also clear from the aforementioned proxy statement and from the testimony of Cohen, that Terex has the right to control the activities of Filip, may assign him to one of its subsidiaries or another at its sole discretion, sets the terms of Filip's compensation and benefits and rewards Filip's performance in managing the subsidiaries. Terex controls Filip's employment, not PPM, and PPM is merely used as Terex's method of payment of Filip's wages.
For all of the foregoing reasons, Terex fits the definition of "Employer" as found in C.G.S. 52-362(a)(4) in that Terex "owes earnings to an obligor" (see exhibits and testimony of Cohen). To find otherwise would allow Terex and/or Filip to continue this corporate "shell game". At the end of this hearing, this Court ordered the SED officer to resend an income withholding to both Terex and PPM to allow either of these entities to comply with the Court order. This Court believed that once the parties were aware of the seriousness of this situation, an income withholding would be put in place. The SED officer reported at a hearing on January 24, 2000 that both entities were still refusing to implement the income withholding (see Ex 1 & 2, 1/24/00). One wonders if this Court sent the petitioner back to South Carolina for enforcement if Terex would simply direct one of its other subsidiaries to pay Filip's wages and then petitioners would have to begin all over. If Terex can direct a subsidiary to pay the wages of Filip, it can direct that same subsidiary to honor the income withholding. It should be noted that petitioner has received no support from Filip since the last court date. Filip is not complying with the Florida court order and Terex is his accomplice. Never has this Court witnessed such machinations on the part of a corporate citizen to flaunt a judicial order of this court, the Florida Court and the clear legislative directives embodied in the statutes. This court finds Terex Corporation to be in contempt of a court order. Terex had knowledge of the order (see Order dated April 30, 1999), it had the ability to comply (for reasons stated herein) and it willfully failed to comply.
Therefore, based on the foregoing, Terex Corporation is ordered as follows:
1. Terex is liable to Esperanza in the sum of $ 29,259 for the full amount of income not withheld since receipt of proper notice. Terex shall forward said sum to SED within ten days of this order and SED shall apply said sums to any arrearage owed by Filip to Esperanza (C.G.S. 52-362(f)).
2. Terex shall post a Performance Bond with SED in the amount of $ 412,818 to secure future payments of support. Said amount is the present value of a stream of monthly payments in the amount of $ 3251 with an assumed life expectancy of fifteen years, an assumed interest rate of 8%, and an assumed inflationary discount of 3%. Terex is authorized to apply to this court for a reduction in the amount of the Performance Bond upon the happening of a modification or termination of support. SED shall use said performance bond to pay Esperanza the sum of $ 3251 per month until further court order. Said performance bond shall be posted on or before March 20, 2000. If Terex fails to post said performance bond, it is directed to present its Chairman and CEO, Ronald M. De Feo, to this Court to show cause why he should not be incarcerated until the bond is posted as ordered or the income withholding is in place. This matter is continued to March 20, 2000.
3. Terex is ordered to appear in this court on March 20, 2000 to show cause why its license to do business in the State of Connecticut should not be suspended until and unless it complies with the courts' orders.
4. Both parties are ordered to appear in this court on March 20, 2000 for an affidavit and testimony regarding petitioner's claimed attorney's fees. Petitioner's counsel shall prepare an affidavit of time and shall be prepared to testify as to the reasonableness of same.
Susan S. Reynolds
Family Support Magistrate