Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford
MEMORANDUM OF DECISION
Michael E. Shay, J.
The marriage of the parties was dissolved by decree of this court on March 16, 2010. At that time the parties entered into a certain Separation Agreement (#150.00) which provided for among other things a division of marital property and the payment of child support by the husband. Each party waived alimony. In addition, the parties agreed to joint legal custody of the three minor children: Matthew, age 17; Michael, age 15; and Natalie, age 10. They also agreed to " liberal access, " and a parenting access plan entitled " Final Parenting Plan Stipulation" (#141.00) (hereinafter " Parenting Plan") dated March 1, 2010, which was filed with the court. At the time of the hearing, both parties were employed: The plaintiff wife (" wife") as a Speech Therapist in the Greenwich Public School System, where, according to her financial affidavit, she earns $104, 572.00 per annum. Although the defendant husband (" husband") was unemployed for a brief period in late 2011 and early 2012, at the time of the hearing he was employed by Santander Bank in Stamford, where, according to his financial affidavit, he earns $178, 984.00 per year. For a substantial period of time, the parties have been at loggerheads regarding a whole host of financial and parenting issues.
The matter comes before this court by way of a cumulative total of more than 30 postjudgment motions commencing with the wife's Motion for Contempt (#157.00) dated February 2, 2012, and the husband's Motion for Modification (#159.01) dated February 7, 2012. The court heard the parties over the course of four days of hearings.
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as, inter alia, the factors enumerated in General Statutes § § 46b-56, 46b-82, 46b-84, 46b-62, 46b-87, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:
1. That " due process of law requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel and have a chance to testify and call witnesses in his behalf." Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994); Kelly v. Kelly, 54 Conn.App. 50, 59-60, 732 A.2d 808 (1999).
2. That a finding of contempt must be based upon a willful failure to comply with a clear and unequivocal order of the court. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001).
3. That " a judgment of contempt cannot be based on representations of counsel in a motion, but must be supported by evidence produced in court at a proper hearing." Kelly v. Kelly, 54 Conn.App. 50, 60, 732 A.2d 808 (1999); that " a finding of indirect civil contempt must be established by sufficient proof that is premised on competent evidence presented to the trial court and based on sworn testimony." Dickinson v. Dickinson, 143 Conn.App. 184, 190, 68 A.3d 182 (2013); and that indirect civil contempt " should be proven by clear and convincing evidence." Brody v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015).
4. That " the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court." Stearns v. Stearns, 4 Conn.App. 323, 327, 494 A.2d 595 (1985).
5. That evidence supports a finding that the parties have repeatedly demonstrated an inability to work together for the benefit of the children; that their communication regarding many issues is less than optimal; and that at the heart of most issues is money.
AS TO MOTION #157.00 (Contempt), #158.00 (Counsel Fees), and #159.01 (Modification)
The husband seeks a modification of his child support obligation, and the wife claims that the husband has willfully failed to pay child support in accordance with the orders of the court, and that he should be held in contempt. In addition, she seeks attorneys fees.
Article V of the Separation Agreement reads in relevant part that, " . . . the Husband shall during his lifetime pay the wife the sum of $260.00 per week as and for child support pursuant to the child support guidelines [provided he is employed at the rate of two hundred and five thousand ($205, 000.00) Dollars per year.] The husband's obligation with respect to each child shall terminate when the child attains age eighteen (18), or if a child is still attending high school when he or she attains age eighteen (18)(sic) and graduates high school, whichever event shall first occur." One of the issues before the court is the interpretation of the preceding language. " Where a judgment incorporates a separation agreement, the judgment should be construed in accordance with the laws applied to any contract . . . Where the contract is clear and unambiguous, the contract is to be given effect according to its terms." Kline v. Kline, 101 Conn.App. 402, 407, 922 A.2d 261 (2007). An agreement is ambiguous " when the language of [the] agreement is susceptible to more than one reasonable interpretation." Isham v. Isham, 292 Conn. 170, 181, 972 A.2d 228 (2009).
The husband adopts the position that if at any time he is not earning $205, 000.00 a year, he has the right to arbitrarily recalculate child support on a fluctuating basis depending upon his present income. (TR 5/1/15 @ 33-34.) This position is both completely unreasonable and without merit. While the phrase taken by itself (the brackets are in the original) would appear to support him, he has taken that phrase completely out of context. First and foremost, each parent has a statutory duty to provide financial support for their minor children. General Statutes § 46b-56(e) and § 46b-84. This obligation cannot be waived by agreement of the parties except under certain extraordinary circumstances not present in this case. Guille v. Guille, 196 Conn. 260, 263-65, 492 A.2d 175 (1985). In addition, it is an established rule of construction, that the intent of the parties to a contract " is to be ascertained by a fair and reasonable construction of the written words." Yomtov v. Yomtov, 152 Conn.App. 355, 361, 98 A.3d 110 (2014) (Emphasis added). At the time that the agreement was signed, the oldest child was 12 years old. Under the terms of the agreement, the husband's obligation terminated at the soonest when each child reached the age of 18, and later if the child was still in high school. The clear meaning of this sentence is that his obligation to pay support was a continuing one. Accordingly, when taken in context, the clear meaning of the phrase is that that the initial amount of support is tied to that level of income, and does not preclude a modification by either party in the event of a substantial change of circumstances or substantial deviation from the Child Support Guidelines. However, the fundamental problem with the husband's position is that it is axiomatic that an order of the court remains in full force and effect until it is changed by order of the court, and not by a party, no matter how well-intentioned. Culver v. Culver, 127 Conn.App. 236, 242, 17 A.3d 1048 (2011); cert. denied. 301 Conn. 929, 23 A.3d 724 (2011). This also applies to an ambiguous or erroneous order. Sablosky v. Sablosky, 258 Conn. 713, 719, 784 A.2d 890 (2001).
The husband has compounded his problem by utilizing the incorrect methodology to calculate his child support obligation. In short, he has conflated the " shared custody" arrangement of the parties in this case with a " split custody" arrangement. He insists that the calculation be made utilizing the methodology employed for " split custody" arrangements, that is to make two separate calculations with the difference between the two being his support obligation. This is incorrect, and the proper treatment of " shared custody" has, in fact, been clarified in the most recent Child Support Guidelines Regulations. § 46b-215a-1(23) and § 46b-215a-2c(c)(7)(B). Moreover, " shared custody" is a deviation factor, and only applied, at the discretion of the court where appropriate, after a determination of the presumptive child support . § 46b-215a-5c(b)(6)(A); O'Brien v. O'Brien, 138 Conn.App. 544, 549-50, 53 A.3d 1039 (2012); cert. denied, 308 Conn. 937, 66 A.3d 500 (2013). The husband has persisted in this erroneous notion, and argues that it would be equitable for the court to follow his methodology, if only for consistency. The court declines to perpetuate this error.
1. That Article 5.1 of the Separation Agreement is clear and unambiguous;
2. That the husband is in breach thereof;
3. That under all the facts and circumstances, the husband's actions do not amount to willful contempt in that he had, in good faith, relied upon professional assistance in the preparation of the child support guidelines worksheets that formed the basis of his modified child support payments.
4. That an award of child support may be modified upon the demonstration of a substantial change of circumstances since the date of the last order, unless the order itself clearly precludes modification; and that where a substantial change of circumstances has been found, the court shall consider the factors set forth in General Statutes § 46b-82. General Statutes § 46b-86(a); Borkowski v. Borkowski, 228 Conn. 729, 737, 638 A.2d 1060 (1994); Schorsch v. Schorsch, 53 Conn.App. 378, 382, 731 A.2d 330 (1999); Spencer v. Spencer, 71 Conn.App. 475, 481, 802 A.2d 215 (2002).
5. That there was a substantial change of circumstances since the date of the last order, in that the husband was unemployed at the time of the filing of the motion for modification; and that under all the circumstances it is equitable and appropriate to consider his motion for modification.
6. That a retroactive modification of child support is within the discretion of the court; that in order for a court to consider retroactivity, service of a motion for modification post judgment must be made pursuant to General Statutes § 46b-86(a) and § 52-50; that service of the husband's Motion for Modification was made in hand upon the wife on February 28, 2012, as evidenced by the Return of Service (#161.00) as on file with the court; and that under all the circumstances, it is appropriate to make the order retroactive to March 1, 2012.
7. That for the period March 1, 2012 through May 31, 2012, the net income of the husband was $750 per week; and that the net income of the wife of the wife was $1, 304.00 per week;
8. That based upon the combined net income of the parties the presumptive child support is $474.00 per week; and that the wife's share thereof is $302.00 per week ($1, 309.00 per month);
9. That for the period June 1, 2012 through December 31, 2012, the net income of the husband was $2, 981.00 per week; and that the net income of the wife of the wife was $1, 304.00 per week; that the combined net income of the parties was $4, 290.00 per week; and that it is appropriate to apply 17.16% to the excess over $4, 000.00 per week.
10. That based upon the combined net income of the parties the presumptive child support is $736.00 per week ($686.00 $50.00); and that the husband's share thereof is $512.00 per week ($477.00 $35.00) ($2, 219.00 per month);
11. That for the period January 1, 2012 through June 30, 2015, the net income of the husband was $3, 321.00 per week; and that the net income of the wife was $1, 400.00 per week; that the combined net income of the parties was $4, 720.00 per week; and that it is appropriate to apply 17.16% to the excess over $4, 000.00 per week.
12. That based upon the combined net income of the parties the presumptive child support is $766.00 per week ($686.00 $80.00); and that the husband's share thereof is $539.00 per week ($2, 336.00 per month);
13. That for the period January 1, 2012 through February 29, 2012, the husband owed a total of $2, 080.00 ($260.00 x 8) in child support; that he has made no payments thereon; and that there is an arrearage of $2, 080.00.
14. That for the period March 1, 2012 through May 31, 2102, the wife owed a total of $3, 926.00 in child support; that made no payments thereon; and that there is an arrearage of $3, 926.00 which should be applied a credit toward the husband's accumulated arrearages;
15. That for the period January 1, 2012 through June 30, 2015, the husband owed a total of $92, 131.00 in child support ($2, 080.00 $70, 080.00 $19, 971.00); that he has paid a total of $34, 447.00, leaving an arrearage of $57, 684.00; and that the net arrearage is $53, 758.00 after applying a credit for the wife's arrears.
16. That as a result of the husband's breach, that for the period commencing January 1, 2012, there is a net accumulated arrearage of child support as of June 30, 2015 in the amount of $53, 758.00.
17. That, pursuant to General Statutes § 46b-62, where there is a breach of a court order, but no finding of contempt, it is within the discretion of the court to award reasonable attorneys fees, so long as a party against whom they are assessed is given an opportunity to challenge the reasonableness of the fees. Dobozy v. Dobozy, 241 Conn. 490, 499-500, 697 A.2d 1117, (1997); Sardilli v. Sardilli, 16 Conn.App. 114, 546 A.2d 926 (1988); Nelson v. Nelson, 13 Conn.App. 355, 536 A.2d 985 (1988).
18. That under all the circumstances, it is equitable and appropriate to award the wife reasonable attorneys fees incurred by her in his matter.
AS TO MOTIONS #166.00 (Contempt) and #169.00 (Counsel Fees)
The husband claims that the wife has breached the Agreement of the parties in that she has taken away his normal parenting time on April 5 and 6 of 2012. Article 4(a) of the Parenting Plan provides that the normal school vacations in March and April of each year are to be alternated by the parties. In 2012, the wife was scheduled to have the children with her for the April school vacation, and she notified the husband that she had made flight arrangements for that Saturday. The husband alleges that the Greenwich Catholic School at which they attend scheduled vacation commencing on Monday, April 8, and that the wife picked the children up from school early on Thursday April 5 and kept them until the following weekend. The school calendar which he has attached to his motion indicates that Thursday (Holy Thursday) was noted in the husband's handwriting " Early Release, " and that Friday (Good Friday) was " No School." He claims that those two days were part of his normal parenting time.
In reviewing the Agreement and the School Schedule nowhere in the latter is the word " vacation" used, rather " spring recess." The court notes that where school vacations or breaks are shared in some fashion by the parties, it is customary that these blocks of time trump normal parenting time, in part, as is so often the case, because travel and expenses are involved over and above normal expenditures, and that arrangements must be made well in advance, as was the case here. The evidence is clear that the parties ultimately had a difference of opinion as to the meaning of " School Vacation" as set forth in their Separation Agreement. The husband initially conceded to the arrangements, and then reneged when it was too late for her to change them. The wife, based upon past practice, quite logically concluded that the time period when school was not in session, including the Spring Recess and the contiguous Thursday through Sunday. For his part, the husband has concluded that the term should be taken quite literally, equating the term " Spring Recess" with " School Vacation." Under the circumstances, since the term is susceptible to two reasonable interpretations, the Article is ambiguous.
1. That Article 4(a) of the Parenting Schedule is ambiguous; and hence the order is not clear and unambiguous;
2. That the husband has failed to demonstrate by clear and convincing evidence that the wife willfully breached the order of court without good cause; and that therefore contempt does not lie; and
3. That the motion for contempt should be denied, and that it is not appropriate to award attorneys fees.
AS TO MOTION #181.00 (Contempt) and OBJECTION #184.00
The husband alleges that the wife has willfully breached Article 9 of the Agreement, in that she failed to offer to the husband the opportunity to be with the children when she was away from them for a period of three consecutive hours. The wife has filed an objection thereto. The evidence supports a finding that both the wife and husband had each made social plans for the evening, and that she left the children with their aunt and uncle, who took them to a restaurant to see a cousin play in a ...