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Scalora v. Scalora

Court of Appeals of Connecticut

May 7, 2019

BETSY SCALORA
v.
JEFFREY SCALORA

          Argued December 4, 2018

         Procedural History

         Action 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 proceedings.

          John A. Barbieri, with whom was Claudia R. Bar-bieri, for the appellant-cross appellee (defendant).

          Jeremiah J. Morytko, for the appellee-cross appellant (plaintiff).

          Lavine, Keller and Bishop, Js.

          OPINION

          BISHOP, J.

         In this 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;[1] (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.

         The 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.

         The 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.

         Pursuant 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.

         On September 16, 2015, the plaintiff filed a motion for contempt alleging that the defendant had failed to satisfy his obligations under the separation agreement.[2]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.

         On 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.

         The 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.[3] 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.

         On June 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 daughter's wedding.

         This appeal and cross appeal followed. Additional procedural history will be set forth as necessary.

         I

         THE DEFENDANT'S APPEAL

         A

         The 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.

         Initially, 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.]).

         Before 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).

         In the 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.

         The 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.[4] Consequently, the defendant's waiver and estoppel defenses are barred.

         B

         The 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.[5] We agree.

         We 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).

         ‘‘The 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.[6] ‘‘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).[7]

         The 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.

         As to 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 separation agreement.''

         As to 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 ...


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