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Schull v. Schull

Appellate Court of Connecticut

February 16, 2016

LAUREN SCHULL
v.
NEAL SCHULL

         Argued October 23, 2015.

          Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Hon. Philip E. Mancini, Jr., judge trial referee, rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' agreement; thereafter, the court, Turner, J., granted the plaintiff's motion for modification and issued certain orders in accordance with the parties' agreement; subsequently, the court, Malone, J., denied the plaintiff's motion for contempt and issued certain orders regarding unreimbursed medical expenses; thereafter, the court, Malone, J., denied the plaintiff's motion to reargue and denied the plaintiff's motion to open, and the plaintiff appealed to this court; subsequently, the court, Malone, J., issued an articulation of its decision.

          SYLLABUS

         The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court denying her motions for contempt and to open that judgment on the basis of fraud. The parties had entered into an agreement to share equally the cost of their minor child's unreimbursed medical expenses. The parties discussed the possibility of experimental eye surgery for the child, who had been born with vision problems. The defendant voiced concerns over the cost of the surgery as well as the fact that it was new to this country and had not received government approval. The minor child underwent the surgery and the resulting medical bills totaled $55,684.91. Subsequently, the defendant filed a motion to terminate his child support obligation on the ground that the child had reached the age of eighteen and graduated high school. The court granted the motion absent an objection from the plaintiff and in accordance with the parties' agreement. One year later, the plaintiff filed a motion for contempt, alleging that the defendant had failed to pay 50 percent of the medical bills for the eye surgery, which had been paid in full. The defendant objected, claiming that the costs were not medical expenses, that the plaintiff had not personally paid for the procedure, and that it was paid for by a charitable fund. The plaintiff claimed that her father had loaned her the money for the medical expenses, and, following a trial, the court denied the plaintiff's motion for contempt. The court did not credit the plaintiff's allegation that her father had loaned her the money. The court explained that the plaintiff had not made any payment to her father in more than three years and that she had not produced evidence at trial that her father paid the medical bills as a loan to her, rather than as a gift to the child. The court, however, gave the plaintiff additional time to submit proof that her father had loaned her the money and that she had assumed a purported obligation to repay those sums. Furthermore, the court ordered that, if the plaintiff provided the additional proof by a certain date, then the defendant would pay a certain monthly amount toward his half of the medical bills. The plaintiff then filed a motion to open that judgment on the basis of fraud, alleging that the defendant had provided a materially false financial affidavit to the court and that he had the ability to make higher monthly payments. The plaintiff failed to submit the additional documentation by the deadline and, subsequently, the court denied the motion to open the judgment. On appeal, the plaintiff claimed that the trial court improperly added new conditions to the prior judgment by conditioning the defendant's repayment of unreimbursed medical expenses on the plaintiff reimbursing her father, improperly ordered the defendant to pay only a nominal amount toward the medical bills, and improperly denied her motion to open the judgment. Held :

         1. The trial court did not improperly add a condition to its prior order that the parties split the cost of unreimbursed medical expenses, which are medical expenses not paid by medical insurance or not reimbursed in any other manner, as the plaintiff could not establish that the medical expenses for which she was seeking reimbursement could be classified as unreimbursed medical expenses and, therefore, neither party was responsible for those expenses: because the plaintiff admitted that she did not pay the medical bills with her personal funds and she failed to prove that the funds were loaned to her or that she was obligated to repay them, there was no showing that the bills were unreimbursed medical expenses for which she was entitled to reimbursement from the defendant; furthermore, rather than add an improper condition to the parties' agreement, the trial court simply gave the plaintiff an additional opportunity to demonstrate that the costs were unreimbursed medical expenses by submitting proof that her father had loaned her the money and that she was obligated to repay it.

         2. The plaintiff's remaining claims regarding the propriety of the defendant's monthly payments and the denial of her motion to open the judgment on the basis of the defendant's financial ability to make the monthly payments were moot, as she failed to prove that there were arrearages in the form of unreimbursed medical expenses that the defendant was required to repay to her; the plaintiff failed to move for a stay of the trial court's order regarding her time to submit proof of the alleged loan and payments thereon, and her failure to provide the required proof by the court's deadline meant that she had failed to prove that there were arrearages in the form of unreimbursed medical expenses that the defendant owed to her, and consequently, the question regarding how much the defendant could afford to pay was rendered moot.

         Stuart Hawkins, with whom, on the brief, was Daniel Shepro, for the appellant (plaintiff).

         Keller, Prescott and Mullins, Js. MULLINS, J. In this opinion the other judges concurred.

          OPINION

          [163 Conn.App. 86] MULLINS, J.

          Pursuant to a prior court order requiring that the parties each pay 50 percent of their son's unreimbursed medical expenses, the plaintiff, Lauren Schull,[1] moved to have the defendant, Neal Schull, held in contempt for failing to pay his share of their son's optical surgery bill. The medical expenses for that surgery, which are the expenses at issue here, allegedly were paid by the plaintiff's father, as a loan to the plaintiff. After a hearing, in which the court concluded that the defendant was not in contempt and that there was insufficient evidence of a loan, the court required the plaintiff to show by a date certain that her father had loaned her the money, that he had not forgiven any portion of that alleged loan, and that she actually was repaying the loan. The court further concluded that only if she complied with the requirement to show that she was obligated to repay the loan and was making payments thereon would the defendant be obligated to pay his share of the medical expenses at a rate of $25 per month, payable to the plaintiff.

         The plaintiff appeals from the judgment of the trial court conditionally ordering the defendant to pay a portion of their son's previously paid medical expenses, and denying her motion to open the judgment on the basis of fraud.[2] On appeal, the plaintiff claims that the court improperly (1) added new conditions to the earlier judgment that required each of the parties to pay 50 percent of their son's unreimbursed medical expenses, (2) ordered the defendant to pay only a nominal weekly [163 Conn.App. 87] amount toward those medical expenses, and (3) denied her motion to open the judgment on the basis of fraud.[3]

         We conclude that the court did not add new conditions to its earlier judgment, but that it gave the plaintiff additional time to submit proof that there was an arrearage owed for unreimbursed medical expenses, of which she failed to take advantage. Accordingly, we affirm that aspect of the trial court's judgment. Additionally, we conclude that the plaintiff's second and third issues are moot, and, therefore, we dismiss that part of the plaintiff's appeal.[4]

         The following facts and procedural history inform our review. The marriage of the parties was dissolved on May 26, 1999. The judgment provided in relevant part that the parties would " divide and pay equally all unreimbursed and uninsured medical . . . expenses of the [two] minor children," a daughter born on July 31, 1991, and a son born on November 1, 1993.[5] On November 14, 2007, the parties entered into an agreement that later was approved by the court, which provided in relevant part that " [a]ll unreimbursed medical expenses shall be split 50/50 between the parties."

          [163 Conn.App. 88] The parties' son had been born with vision problems and suffered from a condition called aniridia. The trial court explained that the son was missing an iris from both of his eyes and that, " as a result of his condition, suffered increased sensitivity to light and had significant limitations with regard to his vision." The parties discussed the possibility of an experimental eye surgery for their son, and the plaintiff told the defendant that such surgery would not be covered by her medical insurance. The defendant voiced concern over the cost of the surgery, but the plaintiff stated that the surgery would occur regardless of whether the defendant paid.

         In January and June, 2011, the son underwent surgery on his eyes.[6] The costs of these procedures and the related medical expenses totaled $55,684.91. The plaintiff did not provide documentation to the defendant related to these medical costs, and the defendant did not pay any portion of these costs. The costs were paid in full during 2010 and 2011.

         On May 18, 2012, the defendant filed a motion to modify child support on the ground that the parties' son, who was the younger child, was over the age of eighteen and out of high school. The court scheduled the matter for a June 18, 2012 hearing and ordered that the plaintiff be served with a copy of the motion and the order for hearing. The marshal's return states that in hand service was made on the plaintiff on May 29, 2012. The plaintiff neither filed an objection to the defendant's motion, nor informed the court that she believed that there were arrearages in the form of unreimbursed medical expenses.

          [163 Conn.App. 89] In the court file, there is a proposed order, dated June 18, 2012, the date of the scheduled hearing, that states that the parties agreed to the " [d]iscontinuance of child support [and] . . . [t]here's no arrearage." The court, without objection, approved the termination of the existing support order on that day.[7]

         Nearly one year later, on May 23, 2013, the plaintiff filed a motion for contempt, alleging that the defendant was in violation of the court's order from the dissolution judgment and from the November 14, 2007 agreement of the parties that required him to pay 50 percent of the unreimbursed medical bills for the minor children. The defendant objected to the motion claiming, inter alia, that the expenses were not truly medical expenses, the procedures were experimental and not approved by the United States Food and Drug Administration (FDA), and the procedures took place more than three years before the plaintiff sought payment from him. He further claimed that the plaintiff did not personally pay for the procedures but the expenses were covered ...


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