Argued
April 12, 2018
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of New
Haven and transferred to the Regional Family Trial Docket at
Middletown, where the matter was tried to the court,
Gordon, J.; judgment dissolving the marriage and
granting certain other relief; thereafter, the court issued
certain orders; subsequently, the defendant filed a motion
for contempt; thereafter, the court, Gould, J.,
declined to rule on a certain issue related to the
defendant's motion for contempt; subsequently, the court,
Gould, J., denied the defendant's motion to
reargue, and the defendant appealed to this court;
thereafter, the court, Gould, J., denied the
defendant's motions for contempt and for modification of
the allocation of the parties' payments of certain
guardian ad litem fees, and granted the plaintiff's
motion for modification of child support and the
defendant's motion for contempt as to certain alimony
payments; subsequently, the defendant filed an amended
appeal; thereafter, the court, Gould, J., granted
the defendant's motion to reargue and issued certain
orders; subsequently, the defendant filed a second appeal
with this court; thereafter, the court, Gould, J.,
modified its order of child support; subsequently, this court
reversed the judgment with respect to the first appeal and
remanded the case for further proceedings. Affirmed.
Britt
Brochard, self-represented, the appellant (defendant).
Thomas
Brochard, self-represented, the appellee (plaintiff).
Keller, Prescott and Bright, Js.
OPINION
KELLER, J.
The
defendant, Britt Brochard, appeals from the postdissolution
judgment of the trial court rendered after a hearing on
financial issues raised by the parties in multiple motions
for contempt and modification.[1] The self-represented
defendant's brief is not a model of clarity,
[2] but
after a thorough review of the record and the parties'
briefs, we have divined that the defendant claims that the
court erred in (1) denying her motion for contempt alleging
that the plaintiff, Thomas Brochard, had failed to pay his
share of the minor children's medical and extracurricular
activity expenses; (2) denying her motion for contempt
alleging that the plaintiff had violated orders related to
the mortgage on the former marital home; (3) denying her
motion for contempt alleging that the plaintiff had failed to
pay her one half of the amounts of 2010 tax refunds he
received; (4) denying her motion for modification of the
court's order allocating the parties' obligation
pertaining to payment of the guardian ad litem's fees;
(5) granting the plaintiff's motion for modification of
child support, thereby decreasing his obligation, and failing
to consider her cross motion for modification, which sought
an increase in the amount of child support; and (6) granting
her motion for contempt regarding certain alimony payments,
but failing to order the plaintiff to pay her the full amount
she was owed. We affirm the judgment of the trial court.
The
following facts, as determined by multiple judges who have
presided over pertinent proceedings in this case, and
procedural history are relevant to this appeal. On July 6,
2011, the court, Gordon, J., dissolved the
parties' marriage. In its memorandum of decision, the
court found that the parties were married on August 27, 1995,
in Ridgefield. They have two children, born in 1997 and
1999.[3] The plaintiff initiated the divorce action
in 2008, following the parties' separation. The court
found that the marriage had irretrievably broken down and
issued the following orders relevant to this appeal. It
ordered the plaintiff to pay to the defendant child support
in the amount of $342 per week, in accordance with the child
support guidelines, on the basis of his yearly income of $85,
441.72. It also ordered that he maintain medical and dental
insurance for the benefit of the minor children if such
insurance coverage was available through his employment.
Additionally, the court ordered each of the parties to pay 50
percent of all unreimbursed, uninsured health related
expenses for the minor children. The defendant was to submit
the bill or statement for such expenses to the plaintiff
within one week of receipt, and he was to pay it within one
week. Each of the parties was responsible for one half of all
reasonably incurred extracurricular expenses for the
children. The court further ordered that the plaintiff pay to
the defendant alimony of $350 per week until the earliest to
occur of the following events: the death of either party, the
remarriage of the defendant, June 30, 2021, or as otherwise
provided for by law. The court stated that its order was
subject to immediate wage withholding. As additional alimony,
and subject to the same termination contingencies as the
weekly order of alimony, the plaintiff was to pay, quarterly,
30 percent of all gross income earned from wages,
self-employment, commissions, incentives, bonuses or other
payment plan in excess of $90, 000 per year ($22, 500 per
quarter), but less than $150, 000 per year, and 20 percent of
any such amounts between $150, 000 and $200, 000 per year.
Every quarter, the plaintiff was to forward to the defendant
proof of his earnings for the previous quarter together with
any payment due. The court ordered the parties to file a
joint tax return for 2010. The plaintiff was responsible for
any taxes due and owing for that year, and any refund would
be divided equally. The court awarded all right, title and
interest in the marital home to the defendant, who would be
responsible for all costs associated with the home.
The
court also approved and incorporated into the judgment the
terms of a parenting agreement between the parties dated
March 25, 2011, which established joint legal custody of the
children with primary residence with the defendant.
Protracted
postdissolution proceedings commenced almost immediately
after the court rendered the judgment of dissolution. In
setting forth some of the postdissolution procedural history,
we rely, in part, on our earlier opinion in Brochard v.
Brochard, 165 Conn.App. 626, 140 A.3d 254 (2016)
(Brochard I).
‘‘On
July 20, 2011, the defendant filed a postjudgment motion for
order, alleging that the plaintiff had not made payments on
the mortgage on the family home since March, 2011. The
mortgage was solely in his name. The defendant requested that
‘the plaintiff be required to bring the mortgage
current, including all attorneys' fees and other
charges.' In the alternative, the defendant move[d] that
the plaintiff be required to immediately provide the bank
with authorization to speak directly to the defendant, timely
file all necessary paperwork in the foreclosure action to
allow the parties to participate in the foreclosure mediation
. . . attend the foreclosure mediation sessions along with
the defendant, and . . . agree to any resolution the
defendant comes to with the bank.'' Id.,
629. The plaintiff objected to this motion.
Judge
Gordon heard the motion for order, granting it in part and
denying it in part, on August 12, 2011. The nature of these
orders is discussed more thoroughly in part II A of this
opinion.
On
February 5, 2013, the plaintiff filed a motion to modify
custody and child support, to which the defendant objected.
The plaintiff claimed a substantial change in circumstances
making it in the children's best interests for him to
have primary physical custody and also sought a modification
of his child support obligation. On April 26, 2013, the
defendant filed a motion for modification seeking an increase
in the child support order. On May 2, 2013, the parties
agreed in writing that the plaintiff's motion would not
go forward, but further agreed that he could seek
retroactivity of any subsequent order(s) regarding child
support. That written agreement was approved and made an
order of the court. It indicates: ‘‘The
[plaintiff's] motion to modify child support shall go off
with orders retroactive to today. However, the [plaintiff]
retains the right to seek retroactivity to the [date of]
filing of the motion.''[4]
Also on
May 2, 2013, as part of the same written agreement the
parties agreed that a guardian ad litem would be appointed
for the parties' then two minor children. They agreed
that the percentage of payment for the guardian ad
litem's legal fees would be argued upon completion of
some outstanding discovery. Attorney Susan E. Nugent was
appointed as guardian ad litem. On May 24, 2013, the
defendant moved that the plaintiff be ordered to pay the
entirety of Nugent's fees. On February 6, 2014, the
court, Munro, J., ordered that the plaintiff pay 80
percent and the defendant pay 20 percent of Nugent's
fees. Judge Munro found that Nugent's fees totaled $5400,
and that the plaintiff already had paid $2500 toward that
amount as a retainer. The defendant had paid nothing despite
Nugent's request of a similar retainer from her. The
court ordered that the plaintiff would be responsible for
$4320 and that the defendant would be responsible for $1080.
Both parties were ordered to make payments to Nugent within
fourteen days.
On June
16, 2014, the defendant moved for an order reallocating the
percentage payment obligations ordered by Judge Munro,
alleging that she did not have sufficient income or assets to
continue to pay her 20 percent share. The plaintiff objected
to the defendant's motion for order and requested that
either the defendant pay all of Nugent's fees, or, in the
alternative, that the parties continue to pay pursuant to
Judge Munro's allocated order.
On
April 26, 2013, the defendant filed a motion for contempt
with respect to the payment of medical and activity expenses,
claiming that the plaintiff had failed to pay his 50 percent
share of some of the children's extracurricular expenses
and unreimbursed medical and dental expenses, which he was
required to pay pursuant to the parenting agreement.
On
April 16, 2014, the defendant filed a motion to compel, which
supplemented an earlier motion to compel she had filed on
March 24, 2014 claiming, inter alia, that the plaintiff
should be ordered to pay her one half of the federal and
state tax refunds he had received for the year 2010 and to
reimburse her for an estimated tax payment she made that
year, which she claimed was ordered by Judge Gordon in the
dissolution judgment.
‘‘On
November 13, 2013, the defendant filed a motion for contempt,
claiming that the plaintiff had violated Judge Gordon's
August 12, 2011 order [with respect to the mortgage on the
marital home] by, inter alia, failing to execute an
authorization allowing the defendant to speak with and
represent the plaintiff with the mortgage loan holder, Wells
Fargo, as the mortgage has been in the name of the plaintiff
solely; said authorization to make [the] defendant the
plaintiff's authorized agent for conversing, negotiating,
entering into an agreement, all that kind of stuff with Wells
Fargo to modify the mortgage loan to avoid foreclosure. Said
authorization was to be specific that she has the
authority.'' (Internal quotation marks omitted.)
Brochard I, supra, 165 Conn.App. 631.
In this
contempt motion, the defendant further claimed that she had
successfully renegotiated the mortgage loan, cancelled all
the late fees and reduced the monthly payments, but that the
plaintiff deliberately had interfered and caused the
renegotiated plan to be cancelled, thereby forcing imminent
foreclosure of the home. She further alleged that the
plaintiff had violated other orders of Judge Gordon that he
would be responsible for any attorney's fees, interest
and/or penalties relating to any foreclosure action on the
marital home, that he provide the defendant with any
documentation he received from the lender bank, and that he
bring the outstanding mortgage on the family home current for
the months of March through July, 2011.
‘‘The
defendant's motion for contempt [regarding the mortgage]
was heard by the court, Munro, J., on November 14,
2013. Judge Munro examined an authorization agreement drafted
by the defendant's attorney and asked if the plaintiff
consented to it. The plaintiff's attorney replied that he
did not, due to language that stated that the defendant would
‘have full and complete authority to negotiate, agree
and execute proposed settlements with said mortgage[e].'
The plaintiff was concerned that this language would permit
the defendant to extend the term of the mortgage, thereby
further tying up his ability to obtain a new mortgage for a
house of his own. The court subsequently told the defendant
that ‘if he signs something that allows you to
negotiate, it should not be something that puts him on the
hook for any more liability than he has now. Do you
understand that?' The defendant replied that she believed
that the intent of Judge Gordon's order was to allow
modification of the loan, and that Judge Munro should consult
the full transcript containing Judge Gordon's order.
Thereupon, Judge Munro stated: ‘I'm going to stop.
I hear you. This is a complicated problem. It's not going
to be dealt with on short calendar with an audience full of
people waiting. I'm going to give you a three day
hearing, and this will be rolled into the three day
hearing.' Following the short calendar hearing, on
November 26, 2013, the plaintiff filed an objection to the
defendant's motion for contempt, attaching an
authorization form and asserting that ‘Judge Munro has
already told the defendant that Judge Gordon did not intend
that the defendant could expand the plaintiff's exposure
under the new mortgage.'
‘‘The
case subsequently was transferred to the regional family
trial docket. At a hearing on February 6, 2014, regarding the
transfer, Judge Munro asked, ‘[a]ll right, and the
motions I sent to regional are motions regarding modification
of custody. Any financial motions at all?' The defendant
replied: ‘A number of financial motions, there's a
motion outstanding for contempt on not paying half the
children's expenses; contempt on medical expenses;
contempt on alimony; [and] contempt on not signing the
authorization for me to be able to modify the home.'
Judge Munro stated, ‘I remember that.' The parties
then began discussing the plaintiff's financial
disclosure and did not mention the contempt motions further.
‘‘The
court, Gould, J., held a hearing on various
matters on June 10, 2014. After concluding the custody and
visitation portion of the hearing, Judge Gould indicated that
he intended to turn to financial issues. The defendant stated
that she wished to proceed to the authorization issue. The
plaintiff objected stating that he needed a few days to
prepare. Judge Gould queried whether the authorization issue
was before him or in the foreclosure court. The defendant
replied that it was before him, after which Judge Gould
stated that they would proceed with outstanding motions on
financial issues at a later date.
‘‘The
defendant filed a motion for an emergency hearing on August
1, 2014, in which she asserted that the court never returned
to the authorization issue. This motion was heard by Judge
Gould on September 11, 2014. Judge Gould stated that it was
his understanding that there was a ruling that the
authorization did not have to be provided. The defendant
protested that Judge Munro's ruling indicated otherwise.
Judge Gould then stated, ‘I'm not indicating [Judge
Munro] ruled on [the authorization]. I'm indicating it
was ruled on previously; it did not have to be provided.'
‘‘The
defendant filed a motion to reargue on October 3, 2014,
asserting that Judge Gould's ruling of September 11,
2014, was based on a misapprehension of fact. She contended
that Judge Gould incorrectly believed that the motion for
contempt regarding the authorization had previously been
ruled on. . . .
‘‘Judge
Gould considered the defendant's motion to reargue on
November 6, 2014. He stated that ‘[t]his court said
there was a prior ruling the authorization for modification
of the mortgage would not have to be provided, and I have a
specific recollection for issuing that order.' The
plaintiff asserted that the issue had been decided by three
judges . . . . The defendant asserted that the transcripts
demonstrated that the issue had not been ruled on. The
plaintiff quoted the statement by Judge Munro that the
plaintiff should not be on the hook for more liability. Judge
Gould then denied the defendant's motion to reargue with
prejudice, noting that she could take an appeal if she
chose.' '' (Footnotes omitted.) Id.,
631-35. The defendant filed an appeal on November 24, 2014.
Despite
the pendency of the appeal in Brochard I, the
defendant, rather than await a ruling by this court,
persisted in seeking to have the trial court decide whether
the plaintiff was in contempt for violating of Judge
Gordon's August 12, 2011 order regarding authorization of
a mortgage modification.
The
court, Gould, J., held a consolidated hearing and
addressed all of the foregoing motions. The hearing took
place on April 21, April 22, and July 10, 2015. On April 22,
2015, the defendant advised the court that she wanted to
pursue the exact same contempt motion that the court had
addressed on November 6, 2014, even though it was still the
subject of an appeal. Although the plaintiff objected on the
ground that this particular issue was still on appeal, the
court permitted the defendant to present her claim that
although she since had been able to assume the mortgage, the
plaintiff was in contempt for not cooperating with her
efforts to modify or assume the mortgage, and pursuant to
Judge Gordon's August 12, 2011 orders, he was liable to
her for costs, including interest, penalties, and fees she
had incurred to prevent a foreclosure and eventually
reinstate and assume the loan.
On May
28, 2015, the defendant filed an addendum to her motion to
modify child support. The court gave the parties three weeks
to file additional information regarding the defendant's
claim on the tax refund. The parties also were permitted to
file posttrial briefs and attach additional
‘‘exhibits'' to them. At the July 10,
2015 hearing, the court denied the defendant's request to
submit additional evidence, but it indicated that it was
giving both parties the opportunity to reinforce their
positions and arguments in their briefs.
On
September 28, 2015, Judge Gould issued a memorandum of
decision that included a decision on the defendant's
motion for contempt regarding the mortgage. Rather than
marking the motion ‘‘off, '' as having
previously been decided, he ruled on it. His decision does
not reference the statement of Judge Gordon related to the
authorization, but it did note that the plaintiff alleged
that ‘‘ ‘the court, Munro, J., has
previously ordered that the plaintiff did not have the duty
to agree to a mortgage modification that would substantially
increase the length of indebtedness to the bank.' [The
court's decision also stated] that ‘[in] his
objection, the plaintiff further alleges and provides
evidence of a September 1, 2011 letter from his attorney to
the defendant [that] enclosed the requested authorization
referred to above, and further alleging that the defendant
had been directly and actively dealing with the lender since
September, 2011.' The decision concludes that ‘the
recitation of the court's orders and findings made by the
plaintiff to be accurate.' The undersigned also finds
that the plaintiff provided the subject authorization to the
defendant.'' Brochard I, supra, 165
Conn.App. 636.
In
addition to denying the defendant's motion for contempt
concerning the mortgage on the marital home, in its September
28, 2015 decision, relevant to this appeal, the court granted
the plaintiff's motion for modification of child support,
granted the defendant's motion for contempt with respect
to the payment of certain alimony payments, denied the
defendant's motion to compel and to hold the plaintiff in
contempt for failing to pay her half of the tax refunds he
received for the year 2010, denied her motion to modify the
allocation of the payment obligations for the guardian ad
litem's fees, and denied her motion for contempt
regarding the children's activities and unreimbursed
medical expenses.[5]
On
October 19, 2015, the defendant amended her prior pending
appeal in Brochard I, claiming error only in the
court's consideration of the mortgage authorization
issue. Prior to the filing of this appeal, this court heard
oral argument on Brochard I. This court issued its
decision on May 24, 2016, and reversed the judgment with
respect to Judge Gould's conclusion that, due to prior
court rulings, the plaintiff could not be held in contempt
for failing to provide an adequate authorization.
Id., 642. This court ruled that neither Judge Munro
nor Judge Gould had ever afforded the defendant an
opportunity to be heard on whether the plaintiff's
proffered authorization met the requirements ordered by Judge
Gordon and that the issue had never been decided.
Id., 640. The case was remanded for an evidentiary
hearing only on that issue, consistent with our opinion.
Id., 642.
Upon
returning to the trial court, on November 2, 2016, the
defendant, through counsel, filed a motion to
reargue/reconsider twelve aspects of the court's
decision. After a hearing on the motion to reargue/reconsider
on February 11, 2016, the court ruled from the bench on
several issues and later, on March 16, 2016, issued a
memorandum of decision in which it altered its modified order
of weekly child support payable by the plaintiff from $220 to
$296, effective June 19, 2015, after hearing argument from
the defendant that the court had made an error in the
calculation of the plaintiff's net income. The court also
corrected the amount it found that the plaintiff owed to the
defendant for past due 2012 alimony, but denied all of the
defendant's other requests to reconsider its decision.
This
appeal was filed on March 2, 2016. After filing this appeal,
the defendant amended her then pending appeal in Brochard
I to claim that the court erred in denying her motion
for contempt relative to the mortgage authorization on
September 28, 2015, because it failed to provide her with a
full evidentiary hearing; the defendant has raised the
identical claim in this appeal. Additional facts and
procedural history will be set forth as necessary.
I
We
first address the defendant's claim that the court erred
in denying her motion for contempt alleging that the
plaintiff had failed to pay his share of the minor
children's medical and extracurricular activity expenses.
Specifically, the defendant claims that the plaintiff owes
her $242.50 for his share of nonemergency unreimbursed
medical expenses and $2129.13 for his share of activity
expenses that he is required to pay pursuant to the
parties' parenting agreement of March 25, 2011.
The
defendant asserts that the court erred in not finding the
plaintiff in contempt because it misinterpreted the
parties' parenting agreement, which, thus, requires us to
examine that document to ascertain the meaning of the terms
contained therein. At the outset, we note that the applicable
standard of review requires a two part inquiry.
‘‘First, we must determine whether the agreement
entered into between the parties in conjunction with the
dissolution of their marriage was clear and unambiguous. . .
. Second, if we find that the court accurately assessed the
intent of the parties regarding the [payment of medical and
activity expenses for the minor children], we must then
decide whether the court correctly determined that the
[plaintiff] had [not] wilfully violated its terms.''
(Internal quotation marks omitted.) Dowd v. Dowd, 96
Conn.App. 75, 79, 899 A.2d 76, cert. denied, 280 Conn. 907,
907 A.2d 89 (2006).
Regarding
the first inquiry, any agreement, including an agreement that
is incorporated into a dissolution judgment is regarded as a
contract. Accordingly, our resolution of the defendant's
claim is guided by the general principles governing the
construction of contracts. ‘‘A contract must be
construed to effectuate the intent of the parties, which is
determined from the language used interpreted in the light of
the situation of the parties and the circumstances connected
with the transaction. . . . [T]he intent of the parties is to
be ascertained by a fair and reasonable construction of the
written words and . . . the language used must be accorded
its common, natural and ordinary meaning and usage where it
can be sensibly applied to the subject matter of the
contract.'' (Internal quotation marks omitted.)
Lisko v. Lisko, 158 Conn.App. 734, 738-39, 121 A.3d
722 (2015). ‘‘Where the language of the contract
is clear and unambiguous, the contract is to be given effect
according to its terms.'' (Internal quotation marks
omitted.) Tallmadge Bros., Inc. v. Iroquois Gas
Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d
1277 (2000). ‘‘Although ordinarily the question
of contract interpretation, being a question of the
parties' intent, is a question of fact . . . [when] there
is definitive contract language, the determination of what
the parties intended by their . . . commitments is a question
of law [over which our review is plenary].''
(Internal quotation marks omitted.) Bristol v. Ocean
State Job Lot Stores of Connecticut, Inc., 284 Conn. 1,
7, 931 A.2d 837 (2007).
The
‘‘determination as to whether language of a
contract is plain and unambiguous is a question of law
subject to plenary review.'' (Internal quotation
marks omitted.) Perez v. Carlevaro, 158 Conn.App.
716, 722, 120 A.3d 1265 (2015). ‘‘A court will
not torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly, any
ambiguity in a contract must emanate from the language used
in the contract rather than from one party's subjective
perception of the terms.'' (Internal quotation marks
omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941
A.2d 301 (2008).
As to
the second inquiry, ‘‘[a] finding of indirect
civil contempt must be established by sufficient proof that
is premised upon competent evidence presented to the trial
court . . . . A finding of contempt is a factual finding. . .
. We will reverse that finding only if we conclude the trial
court abused its discretion.'' (Internal quotation
marks omitted.) Legnos v. Legnos, 70 Conn.App. 349,
352-53, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d
48 (2002). To the extent that the defendant challenges the
factual findings the court relied on in making its
determination that the plaintiff was not in contempt,
‘‘we apply our clearly erroneous standard, which
is the well settled standard for reviewing a trial
court's factual findings.'' Id., 353
n.2. The defendant, as the party seeking a finding of
indirect civil contempt, has the burden of establishing by
clear and convincing evidence that the plaintiff violated an
order of the court. See Brody v. Brody, 315 Conn.
300, 318-19, 105 A.3d 887 (2015).
We
first examine the language of the parenting agreement. The
provisions of the parties' parenting agreement concerning
the children's unreimbursed medical expenses and
activities include paragraph 1, which states, in pertinent
part: ‘‘It shall be the intent of the joint
[legal] custody arrangement to allow each parent to have a
full and active role in providing a sound social, economic,
educational, religious and moral environment for the minor
children.[6] To this end, the [defendant] shall consult
with the [plaintiff] on all non-emergency matters affecting
the health, safety, welfare and education of the minor
children, before such decisions involving the minor children
are taken. These matters shall include, but not be limited
to, such substantial issues as educational programs, camp,
extracurricular activities and medical treatment, etc. If the
[plaintiff] disagrees on the resolution of the issue, the
parties shall seek the assistance of a co-parenting therapist
(chosen by the guardian ad litem) in an effort to resolve the
disputed issue. . . . The parties shall adhere to the
following procedures when dealing with a disputed issue:
‘‘a. After discussion, the [defendant] shall
indicate to the [plaintiff] her final decision. The
[plaintiff] shall within twenty-four hours, inform the
[defendant] that he wishes to trigger the co-parenting
therapy requirement.
‘‘b. The [plaintiff] shall make an initial joint
appointment with the therapist, said appointment to take
place within seven days of the time of his trigger to this
provision.
‘‘c. At the conclusion of the initial
appointment, and at the recommendation of the therapist, the
parties may meet for a second appointment, within seven days.
‘‘If the parties are unable to reach a joint
decision after the meeting with the therapist, the
[defendant] shall be allowed to make the final decision. The
plaintiff . . . may elect to have a court hearing on the
issue; however, this shall not delay the [defendant] from
making the decision prior to any hearing.'' (Footnote
added.)
Also
relevant to the children's activities is paragraph 5 of
the parenting agreement, which states, in pertinent part:
‘‘The parties shall enroll the children in agreed
upon activities for the children and shall share the cost of
the same. Consent for the children to participate in an
activity shall not be unreasonably withheld.''
We
first address the defendant's claim that the plaintiff
violated his obligation to share equally the cost of the
children's unreimbursed medical expenses. The defendant
is seeking an order requiring the plaintiff to reimburse her
for $42.50 for eye examinations and/or corrective lenses by
Shoreline Eye Associates, P.C., and $200 for a psychiatric
consultation with a Dr. Paul ElFishawy. She claims that the
court misinterpreted the parenting agreement and thus made an
‘‘unwarranted modification'' of the terms
of the dissolution judgment. The defendant contends that the
plaintiff agreed to these treatments, and even if he did not,
the parenting agreement does not require her to notify and
obtain the consent of the plaintiff before incurring expenses
for nonemergency medical treatment or activities for the
children. We disagree.
A plain
reading of the applicable provisions in the parenting
agreement, according the language its common, natural and
ordinary meaning and usage, is that it obligates the
defendant to notify the plaintiff of her intent to seek
nonemergency medical treatment for the children. Only after
the plaintiff has been given prior notice and, after some
discussion, indicates that he disagrees, can the defendant
make a decision. Once that occurs, the plaintiff has
twenty-four hours to inform the defendant that he wants to
continue to dispute that decision and trigger the coparenting
therapy requirement. If he does so, and the appointment takes
place within seven days and the parties are still unable to
reach a joint decision, the defendant is then allowed to make
the final decision and incur the contested expense, subject
to the plaintiff's right to return to court for a final
resolution if he so chooses.
The
court correctly determined that paragraph 1 of the parenting
agreement required the defendant to consult with the
plaintiff regarding all nonemergency matters affecting the
health, safety, welfare and education of the minor children,
before any decisions involving the minor children
were made by the defendant. These matters included
educational programming, extracurricular activities and
nonemergency medical treatment. The court found that the
record was ‘‘replete with [the defendant's]
inability, or unwillingness, to communicate with the
plaintiff before undertaking any major decisions regarding
the [childrens'] care.''[7] It further found that
crucial e-mail evidence submitted during the hearing showed
that the plaintiff did not agree with undertaking the
defendant's claimed medical expenses and wanted to
research and/or discuss the matter further with the provider
and the defendant.
The
defendant asserts that the plaintiff should have triggered
the coparenting therapy requirement in the parenting
agreement to address medical bill disputes, but that
provision states: ‘‘After discussion, the
[defendant] shall indicate to the [plaintiff] her final
decision. The [plaintiff] shall within twenty-four hours,
inform the [defendant] that he wishes to trigger the
co-parenting therapy requirement.'' There is no
evidence that the defendant gave any indication to the
plaintiff that she had made her final decisions on medical
treatment prior to the defendant's acceptance of the
services at issue that would have alerted him that he needed
to trigger this requirement.
Essentially,
the defendant was putting the cart before the horse,
incurring expenses for the children without consulting with
the plaintiff and then demanding payment from him. Although
the defendant is correct that the plaintiff must not
unreasonably withhold his approval of such expenses, it is
not possible to unreasonably withhold approval of an action
if one has no notice of it whatsoever or has not had
sufficient time to consider it.
We
agree with the court's determination that the parenting
agreement unambiguously requires the defendant either to
obtain the plaintiff's agreement or to have the type of
discussion contemplated by the trigger provision before the
defendant could incur nonemergency medical expenses for which
she would seek reimbursement from the plaintiff. The court
did not err in denying the portion of the defendant's
motion for contempt regarding her claimed medical expenses.
As to
the children's extracurricular activities, the defendant
acknowledges that she was required to obtain the
plaintiff's agreement prior to enrolling the children in
those activities. The court noted that the defendant provided
the court with an exhibit that contained a list of activities
with a total cost of $2129.13. The court, however, found that
the testimony was unclear as to whether the defendant
complied with the parenting agreement provisions regarding
notice and prior agreement for those expenses and which, if
any, of the claimed expenses remain unpaid.[8] In denying
without prejudice the portion of the defendant's motion
related to the children's extracurricular activities, the
court essentially determined that the defendant had not
proven contempt of court on the part of the plaintiff by
clear and convincing evidence. It also indicated that the
parties could return to court on this issue at a later date
and provide additional evidence regarding any alleged
agreement(s) ...