December 4, 2018
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Hartford and tried to the court, Hon. John D.
Brennan, judge trial referee; judgment dissolving the
marriage and granting certain other relief in accordance with
the parties' separation agreement; thereafter, the court,
Hon. Gerard I. Adelman, judge trial referee, granted
in part the plaintiff's motion for contempt and issued
certain remedial orders, and granted in part the
defendant's motion for contempt and motion for order, and
the defendant appealed and the plaintiff cross appealed to
this court. Reversed in part; further
A. Barbieri, with whom was Claudia R. Bar-bieri, for the
appellant-cross appellee (defendant).
Jeremiah J. Morytko, for the appellee-cross appellant
Lavine, Keller and Bishop, Js.
marital dissolution action, the defendant, Jeffrey Scalora,
appeals from the judgment of the trial court resolving
several of the parties' post dissolution motions. The
defendant claims that the court improperly (1) rejected his
defenses to the motion for contempt filed by the plaintiff,
Betsy Scalora; (2) took judicial notice of certain facts not
in evidence in ordering him to reimburse the plaintiff for
certain education related expenses incurred for the
parties' children; (3) denied his motion for an order
awarding him credit toward the unreimbursed expenses; (4)
found him in contempt for failing to maintain a life
insurance policy; (5) ordered him to pay certain sums found
owing to the plaintiff without taking into consideration his
ability to pay; and (6) declined to award him attorney's
fees in relation to his motion for contempt.
plaintiff cross appeals from the court's judgment,
claiming that the court (1) abused its discretion in
declining to award her attorney's fees and costs in
relation to her motion for contempt and (2) improperly
implied a reasonableness standard into the parties'
separation agreement, which had been incorporated into the
judgment of dissolution. We agree with the defendant's
second and fourth claims and decline to address the merits of
the plaintiff's claims due to her failure to brief them
adequately. Accordingly, we affirm in part and reverse in
part the judgment of the trial court.
following procedural history is relevant to our resolution of
the appeal and cross appeal. The court, Hon. John D.
Brennan, judge trial referee, dissolved the parties'
marriage on February 8, 2008. At the time, the parties'
two daughters were eighteen and fifteen years old,
respectively. The court found that the parties' marriage
had broken down irretrievably and accepted, as fair and
equitable, their written separation agreement, which it
incorporated by reference into the dissolution judgment.
to the separation agreement, the defendant was required,
inter alia, to pay the plaintiff periodic alimony in a
prescribed amount, to pay for the plaintiff's medical
insurance premiums for a period of time, to pay for certain
activity and education related expenses for the children, and
to maintain, at his own expense, an appropriate life
insurance policy on his life for the benefit of the plaintiff
and the children. The agreement also contained a nonwaiver
clause providing that either party's failure to seek
enforcement of the agreement would not constitute a waiver of
his or her right to do so at a later time.
September 16, 2015, the plaintiff filed a motion for contempt
alleging that the defendant had failed to satisfy his
obligations under the separation agreement.As clarified in
her post hearing brief, the plaintiff claimed, inter alia,
unpaid alimony for the period from 2010 up until her
remarriage in 2015, reimbursement for her medical insurance
premiums, reimbursement for life insurance premiums for a
policy she had taken out on the defendant's life from
2010 through 2014, and reimbursement for various activity and
education related costs she had incurred for the benefit of
the children between 2010 and 2014.
November 29, 2016, the defendant filed three defenses to the
plaintiff's motion for contempt. First, the defendant
alleged that the plaintiff was guilty of laches by
inexcusably waiting until 2015 to file a motion for contempt
for arrearages that had begun to accrue in 2010, thereby
prejudicing him. Second, the defendant alleged that the
plaintiff was equitably estopped from pursuing her contempt
motion because he had relied to his detriment on the
plaintiff's forbearance. Finally, the defendant alleged
that the plaintiff intentionally had waived her right to
enforce the dissolution judgment by failing to do so earlier.
matter was heard by the court, Hon. Gerard I.
Adelman, judge trial referee, over the course of four
days between February and May, 2017. Also, on April 20, 2017,
the defendant filed a motion for contempt alleging that the
plaintiff had improperly claimed the younger daughter as a
dependent for federal income tax purposes for the years 2009,
2011, and 2013. The defendant also filed a motion for an
order requesting, inter alia, that the court give him credit
for one half of the cost of the older daughter's 2014
wedding toward any sums found owing to the plaintiff. By
consent of the parties, the court heard the defendant's
two motions as part of the proceeding on the plaintiff's
motion for contempt on May 9, 2017.
27, 2017, the court issued a memorandum of decision
responding to all of the parties' pending motions. The
court rejected the defendant's defenses and granted the
plaintiff's motion for contempt with respect to the
defendant's nonpayment of alimony and failure to maintain
life insurance. The court denied the remainder of the
plaintiff's motion but issued remedial orders requiring
the defendant to reimburse the plaintiff for the cost of her
medical insurance premiums, certain education related
expenses for the younger daughter, and the children's
activity related expenses. As to the defendant's motions,
the court found the plaintiff in contempt for improperly
claiming the dependency exemptions. The court denied his
claim for credit for one half of the cost of the older
appeal and cross appeal followed. Additional procedural
history will be set forth as necessary.
defendant first claims that the court abused its discretion
in rejecting his defenses without having fully considered the
elements of each. Because the court properly determined that
the defendant's defenses were barred by the nonwaiver
clause of the parties' separation agreement, any
inadequacy in the court's consideration of the elements
of each defense is inconsequential to our analysis. We
therefore reject this claim.
we set forth the applicable standard of review. Ordinarily,
the determination of whether a plaintiff's claim is
barred by the doctrines of laches, equitable estoppel, or
waiver is a question of fact and, therefore, subject to the
clearly erroneous standard of review. See Kasowitz v.
Kasowitz, 140 Conn.App. 507, 513, 59 A.3d 347 (2013);
Culver v. Culver, 127 Conn.App. 236, 244-45, 17 A.3d
1048, cert. denied, 301 Conn. 929, 23 A.3d 724 (2011);
Ford v. Ford, 72 Conn.App. 137, 141-42, 804 A.2d 215
(2002). In the present case, however, the court relied on the
legal effect of the nonwaiver clause of the parties'
separation agreement in rejecting the defendant's
defenses. The parties do not claim, and we do not find any
basis for concluding, that this clause is ambiguous.
Consequently, our standard of review is plenary. See
Dow-Westbrook, Inc. v. Candlewood Equine Practice,
LLC, 119 Conn.App. 703, 711-12, 989 A.2d 1075 (2010)
(‘‘[T]he interpretation and construction of a
written contract present only questions of law, within the
province of the court . . . so long as the contract is
unambiguous and the intent of the parties can be determined
from the agreement's face. . . . [T]he construction and
legal effect of the contract [is] a question of law for the
court.'' [Internal quotation marks omitted.]).
discussing the legal effect of the nonwaiver clause in the
present case, we briefly review the law governing the
defenses of laches, equitable estoppel, and waiver.
‘‘Laches is an equitable defense that consists of
two elements. First, there must have been a delay that was
inexcusable, and, second, that delay must have prejudiced the
defendant.'' (Internal quotation marks omitted.)
Kasowitz v. Kasowitz, supra, 140 Conn.App. 513.
‘‘Equitable estoppel is a doctrine that operates
in many contexts to bar a party from asserting a right that
it otherwise would have but for its own conduct. . . .
[E]stoppel always requires proof of two essential elements:
the party against whom estoppel is claimed must do or say
something calculated or intended to induce another party to
believe that certain facts exist and to act on that belief;
and the other party must change its position in reliance on
those facts, thereby incurring some injury.''
(Citation omitted; internal quotation marks omitted.)
Culver v. Culver, supra, 127 Conn.App. 244.
‘‘Waiver is the intentional relinquishment of a
known right. . . . Waiver need not be express, but may
consist of acts or conduct from which a waiver may be
implied. . . . In other words, waiver may be inferred from
the circumstances if it is reasonable to do so.''
(Internal quotation marks omitted.) Carpender v.
Sigel, 142 Conn.App. 379, 388, 67 A.3d 1011 (2013).
present case, not only did the parties' separation
agreement expressly foreclose waiver by the mere passage of
time, it affirmatively granted to each party the right to
enforce the dissolution judgment at any later time.
Pursuant to paragraph 15.1 of the agreement,
‘‘[n]o failure to assert any right, or to enforce
any provision of [the] [a]greement shall operate as a waiver
of such right or provision, and either party shall be
fully privileged to assert or enforce such right or provision
at any later time.'' (Emphasis added.) On the
basis of the parties' express agreement, the plaintiff
was entitled to file her motion for contempt at any time
without regard to the issue of delay. Consequently, the
defendant's defense of laches necessarily fails.
defendant's equitable estoppel and waiver defenses
similarly must fail. As this court has observed, albeit in
the context of commercial agreements, an enforceable
nonwaiver clause ‘‘bar[s] the application of
waiver and estoppel defenses unless a party establishes the
existence of unequal bargaining positions or ‘sharp
dealing.' See Christensen v. Cutaia, [211 Conn.
613, 619-20, 560 A.2d 456 (1989)]; S.H.V.C., Inc. v.
Roy, [188 Conn. 503');">188 Conn. 503, 507, 450 A.2d 351 (1982)]; see also
Webster Bank v. Oakley, 265 Conn. 539, 549-51, 830
A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S.Ct. 1603,
158 L.Ed.2d 244 (2004).'' Milford Paintball, LLC
v. Wampus Milford Associates, LLC, 137 Conn.App. 842,
853 n.8, 49 A.3d 1072 (2012). The defendant does not contend
that the nonwaiver clause in the present case is
unenforceable or that the parties either occupied unequal
bargaining positions or engaged in ‘‘sharp
dealing, '' and the court made no such
findings. Consequently, the defendant's waiver
and estoppel defenses are barred.
defendant next claims that the court improperly took judicial
notice of certain facts in ordering him to reimburse the
plaintiff for education related expenses incurred for the
benefit of the younger daughter. We agree.
begin by stating our standard of review. ‘‘A
trial court's determination as to whether to take
judicial notice is essentially an evidentiary ruling, subject
to an abuse of discretion standard of review. . . . In order
to establish reversible error, the defendant must prove both
an abuse of discretion and a harm that resulted from such
abuse. . . . In reviewing a trial court's evidentiary
ruling, the question is not whether any one of us, had we
been sitting as the trial judge, would have exercised our
discretion differently . . . . Rather, our inquiry is limited
to whether the trial court's ruling was arbitrary or
unreasonable.'' (Citation omitted; footnote omitted;
internal quotation marks omitted.) In re Natalie J.,
148 Conn.App. 193, 207, 83A.3d 1278, cert. denied, 311 Conn.
930, 86 A.3d 1056 (2014).
doctrine of judicial notice excuses the party having the
burden of establishing a fact from introducing formal proof
of the fact. Judicial notice takes the place of
proof.'' (Internal quotation marks omitted.)
Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707,
730 n.24, 652 A.2d 496 (1995). ‘‘There are two
types of facts considered suitable for the taking of judicial
notice: those [that] are common knowledge and those [that]
are capable of accurate and ready demonstration. . . . Courts
must have some discretion in determining what facts fit into
these categories. It may be appropriate to save time by
judicially noticing borderline facts, so long as the parties
are given an opportunity to be heard.'' (Citation
omitted; internal quotation marks omitted.) Ferraro v.
Ferraro, 168 Conn.App. 723, 732, 147 A.3d 188 (2016);
see Conn. Code Evid. § 2-1. ‘‘Notice to the
parties [however] is not always required when a court takes
judicial notice. Our own cases have attempted to draw a line
between matters susceptible of explanation or contradiction,
of which notice should not be taken without giving the
affected party an opportunity to be heard . . . and matters
of established fact, the accuracy of which cannot be
questioned, such as court files, which may be judicially
noticed without affording a hearing.'' (Internal
quotation marks omitted.) Ferraro v. Ferraro, supra,
732; see also Conn. Code Evid. § 2-2 (b).
following additional procedural history is relevant to our
resolution of the defendant's claim. Pursuant to
paragraph 3.3 of the separation agreement, the defendant was
required to pay for ‘‘the post-secondary
education in college or for any further learning and training
beyond high school for each child, including tuition, room,
board, books, fees, clothes and necessary transportation and
travel costs.'' During the proceeding on her motion
for contempt, the plaintiff argued that this provision
clearly and unambiguously required the defendant to pay,
without limitation, for any and all of the children's
food and clothing expenses incurred while they were at
college or graduate school. The court disagreed and, instead,
imported the notion that such expenses, if subject to
reimbursement, must have been reasonable when incurred.
food expenses, the court first determined that, in light of
the fact that the younger daughter had been enrolled in a
meal plan offered by her university, the provision was
ambiguous as to whether the use of the term
‘‘board'' encompassed food purchased
outside the meal plan. The court concluded that,
‘‘construing the language of the separation
agreement in a ‘sensible manner' . . . the
[defendant] should not be required to reimburse the
[plaintiff] for each and every grocery purchase.''
(Citation omitted.) The court further noted, however, that
there may have been instances where, although at university,
the younger daughter was not able to utilize her meal plan
and therefore required funds with which to purchase food
elsewhere, such as while traveling to and from school or when
her commitments as part of the university's soccer team
prevented her from accessing the campus dining hall. The
court found that, ‘‘[i]n these situations, it
would appear that the [defendant] could reasonably be
expected to pay for [her] food pursuant to the terms of the
clothing expenses, the court determined that paragraph 3.3
was ambiguous as to whether the
‘‘clothes'' referenced therein were
limited to items normally associated with college living, as
opposed to, for example, formal wear to attend family
weddings. Construing the relevant contract language in a
‘‘fair and reasonable'' manner, the court
concluded that the defendant's ...