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Mettler v. Mettler

Court of Appeals of Connecticut

May 31, 2016

ELIZABETH METTLER
v.
KIRSTEN METTLER

          Submitted on briefs March 7, 2016

         Appeal from Superior Court, judicial district of New Haven, Gould, J.

          David N. Rubin, filed a brief for the appellant (plaintiff).

          Susan E. Nugent, filed a brief for the appellee (defendant).

          LAVINE, BEACH AND MULLINS, JS.

          OPINION

          LAVINE, J.

         The plaintiff, Elizabeth Mettler, appeals from the judgment of the trial court finding her in contempt for wilfully failing to pay the defendant, Kirsten Mettler, one half of certain of their child’s extracurricular activity expenses, pursuant to a post dissolution agreement that the parties had entered into and that was approved by the court. On appeal, the plaintiff claims that the trial court erred by (1) holding her in civil contempt based on an ambiguous court order, (2) failing to admit extrinsic evidence regarding the intent of the parties with respect to the agreement, and (3) ordering the plaintiff to pay a clearly erroneous amount of extracurricular activity fees.[1] We conclude that the agreement was ambiguous, and, thus, we reverse the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The parties were married on April I, 2000. They had one child, who was born on February 5, 2001. On April 22, 2009, the parties’ marriage was dissolved after alengthy and hotly contested dissolution trial. The court initially ordered the child into the custody of the Commissioner of Children and Families. The court ordered that after the child’s reunification with one or both parents, the plaintiff and defendant would have joint legal custody of the child. On June II, 2009, the court granted the parties joint legal and physical custody. The order stated that the parties would not make any unilateral decisions regarding the child’s extracurricular activities, including in which summer activities she would participate.

         On June 10, 2010, the court awarded the defendant sole custody of the child. The defendant has had sole legal and physical custody of the child since that date. On July 26, 2011, the parties entered into an agreement regarding ongoing financial issues.[2] The guardian ad litem for the child approved the agreement on behalf of her ward, and the court entered the agreement as an order of the court. The parties agreed that the plaintiff would pay $236 per week in child support. In addition to their agreement on the child support payments, the parties agreed that they would share additional expenses for their child’s extracurricular activities. The relevant provision stated: ‘‘Effective August 1, 2011, the parties shall share equally the child’s agreed upon activity expenses concerning swimming, guitar, tennis and summer camps.’’

         On June 6, 2014, the defendant filed a motion for contempt alleging that the plaintiff had failed to comply with the July 26, 2011 court-approved agreement because she had not paid the defendant for any of the expenses related to the child’s swimming, guitar, tennis, and summer camps incurred since August 1, 2011. On January 20, 2015, the court held a hearing on the motion during which the plaintiff, the defendant, and the guardian ad litem for the child, [3] Attorney Anne Epstein, testified. The plaintiff attempted to call Attorney Charles Willinger, who previously had represented her and participated in the drafting of the agreement, as a witness, and the defendant objected. The court sustained the defendant’s objection on the ground that Willinger’s testimony would constitute extrinsic evidence, and it did not allow him to testify. The court stated that it would not allow Willinger to testify because the meaning of the agreement was to be determined from the plain language of the agreement and extrinsic evidence was not necessary.

         The court issued a memorandum of decision on March 12, 2015, granting in part the defendant’s motion for contempt. See footnote 4 of this opinion. The court found that the plaintiff intentionally and wilfully refused and neglected to pay the defendant the portion she owed for the child’s swimming, guitar, tennis, and summer camp expenses from August 1, 2011 to the date of the hearing. The court concluded that the defendant continuously had provided the plaintiff with notice of the expenses and that the plaintiff at all times was aware of the expenses. The court found that the plaintiff owed an arrearage of $17, 441.45 and, on the basis of its review of her financial affidavit, that the plaintiff had the ability to pay the arrearage. It ordered the plaintiff to pay the arrearage in three payments to purge the contempt.

         The court concluded that the language of the agreement was clear and unambiguous. It stated that ‘‘ ‘agreed upon activity expense’ can only be interpreted as already agreed upon. Webster’s Dictionary 5th Edition defines ‘agree’ as to have the same opinion and is ‘often followed by on or upon. The agreement does not read ‘agree’ upon, implying that they must first agree. Instead, it reads ‘agreed upon activity expense[s], ’ which implies that the activity was agreed upon and the agreement addressed the expenses associated or ‘concerning’ particular activities-swimming, guitar, tennis, and summer camps.’’ Furthermore, the court found that the evidence at the hearing showed that the specified activities were agreed upon by the parties when they executed the July 26, 2011 agreement. The court noted that both parties acknowledged that the child had been involved in the activities at issue both prior to and subsequent to the July 26, 2011 agreement.

         The plaintiff filed a motion to re argue, which the court denied on April 6, 2015. The plaintiff subsequently filed a motion for articulation on May 4, 2015. On May 29, 2015, the court issued its articulation, iterating that it had found that the ‘‘parties had already agreed upon the subject activities, the parties’ prior agreement and subsequent court orders containing the agreement [were] clear. There was no evidence that either party had withdrawn that prior agreement, or had filed, and had been granted, a motion to modify that prior agreement.’’ The court also noted that it had found that the expenses concerning the child’s participation in swimming, guitar, tennis, and summer camps were reasonable. This appeal followed.[4]

         The plaintiff claims that the trial court abused its discretion by finding her in contempt because the court order that she was found to have violated was ambiguous. The plaintiff argues that the provision in the agreement stating that ‘‘the parties shall share equally the child’s agreed upon activity expenses concerning swimming, guitar, tennis and summer camps’’ is ambiguous because it can be interpreted to mean that she did not incur the obligation to pay for her child’s participation in the activities unless the defendant consulted with her and obtained her consent about the cost of each activity before the child was enrolled. She further argues that the trial court’s conclusion that the language of the agreement was clear and unambiguous renders the words ‘‘agreed upon’’ ...


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