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Barber v. Barber

Court of Appeals of Connecticut

October 1, 2019

VIRGINIA CHA BARBER
v.
ATIIM KIAMBU BARBER

          Argued January 17, 2019

         Procedural History

         Motion by the defendant for modification of child support issued in connection with a foreign judgment of dissolution, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Tindill, J., granted the plaintiff’s motion for order; thereafter, the court, Colin, J., denied the defendant’s motion to modify child support and the plaintiff’s motions for contempt and for attorney’s fees and costs, and issued certain orders, and the plaintiff appealed and the defendant cross appealed to this court. Affirmed; cross appeal dismissed.

          Sarah E. Murray, with whom was Christopher DeMattie, for the appellant-cross appellee (plaintiff).

          Yakov Pyetranker, for the appellee-cross appellant, (defendant).

          Lavine, Prescott and Elgo, Js.

          OPINION

          LAVINE, J.

         This postdissolution appeal arises out of motions filed by the plaintiff, Virginia Cha Barber, and the defendant, Atiim Kiambu Barber, regarding the child support provisions of their separation agreement (agreement), which was incorporated into their New York divorce decree. On appeal, the plaintiff claims that the trial court, Colin, J., erred by (1) ‘‘rewriting’’ the agreement with respect to the manner in which the defendant’s child support obligation is to be calculated and (2) failing to award her attorney’s fees and costs to oppose the defendant’s unsuccessful attempt to invalidate a provision of the agreement and to enforce the agreement’s default provision regarding addon child support. On cross appeal, the defendant claims that the trial court, Tindill, J., erred by concluding that the substantive law of New York applied to his motion to modify child support. We affirm the judgments of the trial court with respect to the plaintiff’s appeal and dismiss the defendant’s cross appeal.

         The following facts and procedural history are relevant to our resolution of the parties’ appeals. On April 3, 2012, prior to the dissolution of their marriage, the parties entered into a highly detailed, sixty-page agreement, [1] which provides that it is to be construed pursuant to New York law.[2] On June 23, 2012, the Supreme Court of New York, county of New York, dissolved the parties’ marriage and incorporated the agreement into the dissolution judgment.

         At the time of dissolution, the parties and their four minor children all lived in New York City.[3] Pursuant to the agreement, the parties have joint legal custody of their children, although the children primarily reside with the plaintiff. In 2013, the defendant moved to New Jersey. The agreement contemplated that the plaintiff may relocate outside of New York City; in August, 2014, she and the children moved to Connecticut.

         The agreement requires the defendant to pay the plaintiff basic child support and addon child support.[4] The parties agreed that the defendant should have an opportunity to rehabilitate his career,[5] and, therefore, he was not required to pay the plaintiff child support from the date of dissolution through February 28, 2015.[6] On February 5, 2015, pursuant to General Statutes § 46b-71, the defendant registered the New York judgment of dissolution in the Superior Court.

         On February 23, 2015, the defendant filed a ‘‘Motion for Modification, Postjudgment’’ (motion to modify), in which he represented that there had been a substantial changein the parties’ financial circumstances and asked the trial court to modify downward his child support obligations. The motion to modify cited General Statutes § 46b-86 (modification permitted upon demonstration of substantial change in circumstances) and New York Domestic Relations Law § 236 (B) (9) (b) (2) (i) (McKinney 2010) (same). In response to the defendant’s motion to modify, the plaintiff filed a ‘‘Motion for Order Regarding the Applicable Child Support Guidelines, Postjudgment’’ (motion for order). On September 21, 2015, the parties appeared at short calendar before Judge Tindill, who requested supplemental briefing. On January 12, 2016, the court granted the plaintiff’s motion for order, concluding that the substantive law of New York applied to the defendant’s motion to modify. The court denied the defendant’s motions for articulation and for reargument. The defendant appealed from Judge Tindill’s decision, but this court dismissed the appeal for lack of a final judgment.

         On February 1, 2016, the plaintiff filed three motions: ‘‘Motion for Contempt re: Children’s Addon Expenses, Postjudgment’’; ‘‘Motion for Order re: Attorney’s Fees and Expenses, Postjudment’’; and ‘‘Motion for Contempt re: Child Support, Postjudgment.’’ The plaintiff’s motions and the defendant’s motion to modify were heard by Judge Colin on September 7 and 8, 2016. Although the defendant continued to disagree with Judge Tindill’s decision that New York law applied to the motion to modify, during the hearing on the motion to modify he accepted Judge Colin’s position that the court was bound by Judge Tindill’s decision, which was the law of the case.[7] The plaintiff and the defendant agreed that the standard for modification of child support is the same under Connecticut and New York law, namely, that the moving party must prove a substantial change in circumstances. On September 19, 2016, Judge Colin denied the defendant’s motion to modify and the plaintiff’s motions for contempt and for attorney’s fees and costs. On October 28, 2016, the plaintiff appealed from the judgments denying her motions for attorney’s fees and for contempt regarding the children’s addon expenses. Although she did not appeal from the judgment denying her motion for contempt regarding child support, the plaintiff claims that in issuing a prospective order related to that motion, the court ‘‘rewrote’’ the agreement. On November 7, 2016, the defendant filed a cross appeal regarding the choice of law order issued by Judge Tindill. Additional facts will be provided as necessary.

         In addressing the parties’ appeals, we are guided by our general standard of review. ‘‘An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’’ (Internal quotation marks omitted.) St. Germain v. St. Germain, 135 Conn.App. 329, 333, 41 A.3d 1126 (2012).

         I

         THE PLAINTIFF’S APPEAL

         On appeal, the plaintiff claims that Judge Colin erred by (1) rewriting the parties’ agreement with respect to the manner in which the defendant’s basic child support obligation is to be calculated and (2) failing to award her attorney’s fees and costs to defend the defendant’s alleged effort to invalidate a provision of the agreement and to enforce the default provision of the agreement. We disagree with the plaintiff’s claims and, therefore, affirm the judgments of the trial court.

         A

         The plaintiff first claims that in adjudicating her motion for contempt regarding child support, the court issued an order with respect to the manner in which the parties were to proceed to resolve their dispute regarding basic child support, namely, how they were to calculate the amount of basic child support the defendant owes the plaintiff. The plaintiff claims that the court rewrote the agreement by ordering the parties to direct their accountants to use the ‘‘adjusted gross income as shown on the parties’ income tax returns to calculate the amount of child support each party claims to be owed . . . .’’ (Internal quotation marks omitted.) The order constitutes a rewriting of the agreement, the plaintiff argues, because the agreement requires the parties to use the New York child support guidelines formula, not the adjusted gross income shown on the parties’ tax returns. We disagree that in issuing its order, the court rewrote the agreement.

         The following facts pertain to the plaintiff’s claim that the court improperly rewrote the agreement by issuing its order related to the calculation of basic child support. In the contempt motion, the plaintiff quoted Article IX, paragraph 2, [8] of the agreement concerning the defendant’s obligation to pay basic child support. She also quoted Article IX, paragraph 4, of the agreement, which concerns how the parties are to calculate the amount of basic child support the defendant owes the plaintiff for the coming year.[9] The plaintiff claimed that under the terms of, and formula in, the agreement, the defendant’s child support obligation from March 1, 2015 to February 29, 2016, was $8148.24 per month, or $97, 778.88 for the year. The plaintiff alleged that the defendant had paid only $42, 159.96 for the year and, therefore, owed her $55, 618.91. She alleged that the defendant had violated the agreement wilfully and intentionally, and, therefore, she was compelled to incur legal fees and costs to enforce the defendant’s basic child support obligation. She also alleged that pursuant to Article XXXI of the agreement, she was entitled to attorney’s fees and expenses if she prevailed on the motion. She asked the court to hold the defendant in contempt and to order him to pay her $55, 618.92 immediately, and to pay her reasonable attorney’s fees and costs associated with the motion for contempt.

         Judge Colin denied the plaintiff’s motion for contempt and issued an order to facilitate the resolution of the dispute between the parties. In its order, the court stated that the motion involves a claim by the plaintiff that the defendant is in contempt of his basic periodic percentage based child support obligation. The court found that the original basic child support order contains a somewhat complicated income based formula and contemplates that there may be future disagreement between the parties as to the exact amount of child support the defendant is to pay the plaintiff. The agreement specifically provides that ‘‘[i]f the parties cannot agree on the amount of basic child support that the [defendant] will pay for the upcoming twelve month period, the [defendant] will pay at least that support that he deems appropriate and the [plaintiff] will accept same without waiving any of her rights and may seek judicial intervention . . . .’’ The court further found that the agreement ‘‘expressly contemplates that in the event of a dispute, the parties’ respective accountants shall discuss [the issues] and, if they are still unable to agree, either party may seek [judicial intervention].’’ (Internal quotation marks omitted.)

         The court found that ‘‘the precise amount of the payment order is not entirely clear and unambiguous . . . .’’ Of particular significance to the present issue is the court’s finding that there was no evidence that before they sought judicial intervention, the parties had fulfilled the agreement’s condition precedent that their accountants discuss the issues in dispute. The court, therefore, issued the order of which the plaintiff complains.

         The court ordered that, within thirty days, the plaintiff was to deliver to the defendant a computation prepared by her accountant of the amount that she claims is owed to her by way of periodic, basic child support. Within sixty days, the defendant is to deliver to the plaintiff a computation prepared by his accountant of the amount that he believes he owes the plaintiff. The court directed the parties ‘‘to instruct their accountants, as per the previous ruling of Judge Tindill, to utilize the New York child support guidelines formula in general, and the precise illustrations contained in paragraph 7 on pages 16 and 17 of their [agreement] in particular (including the use of adjusted gross income as shown on the parties’ income tax returns as per paragraphs 7 (a) and (b) on pages 16 and 17 of the [agreement]), in order to prepare the necessary calculations.’’

         The court noted that the plaintiff’s computation of her income for use in the child support calculation was not consistent with the adjusted gross income shown on her income tax returns and that the plaintiff did not adequately explain the discrepancy. The court stated that perhaps the discrepancy ‘‘can be addressed by the accountants during their discussions . . . [and] [t]he amount of the claimed arrearage shall also be discussed between the accountants as contemplated by the language of the order quoted above.’’ The defendant was to pay any agreed on arrearage no later than March 1, 2017. If a dispute exists after the parties conclude the steps the court referenced in its order, either party may file a motion for order that will be heard by the court. In light of the language of the current New York child support order and the evidence presented at the hearing on September 7 and 8, 2016, the court concluded that its order was necessary to insure full compliance with the New York court orders and to narrow the issues in the dispute at any future hearing.

         The plaintiff’s claim requires us to determine whether, in adjudicating the plaintiff’s motion for contempt, the court rewrote the agreement when it determined the path the parties were to follow to resolve their dispute as to the amount of child support the defendant owed the plaintiff. Pursuant to our de novo review, we conclude that the court did not rewrite the agreement.

         ‘‘The law of judgments . . . is well settled. The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. . . . As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . If faced with . . . an ambiguity, we construe the court’s decision to support, rather than to undermine, its judgment. . . . The judgment should admit of a consistent construction as a whole. . . . To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances. . . . We review such questions of law de novo. . . . Additionally, our appellate courts do not presume error on the part of the trial court. . . . Rather, we presume that the trial court, in rendering its judgment . . . undertook the proper analysis of the law and the facts.’’ (Citations omitted; internal quotation marks omitted.) Rogan v. Rungee, 165 Conn.App. 209, 223, 140 A.3d 979 (2016).

         Our review of Judge Colin’s September 19, 2016 decision discloses that the court was well aware of the parties’ dissolution judgment, including the child support provisions in the agreement. It also was aware that Judge Tindill had ordered that New York law was to be applied to the calculation of the defendant’s basic child support obligation. The court found that the parties agreed to a complicated income based formula and that they contemplated that there may be future disagreement about the amount of basic child support. The court further found that the agreement addresses how the parties were to reconcile any disagreement regarding the amount of basic child support the defendant owed the plaintiff for the coming twelve months. In fact, the court quoted paragraph 3 of the relevant article of the agreement, i.e., the parties’ ‘‘respective accountants shall discuss same and if they are still unable to agree either party may seek [judicial intervention].’’ (Internal quotation marks omitted.) The court found that the precise amount of the payment order was not entirely clear and unambiguous. Most significantly, the court found no evidence that before they sought judicial intervention, the parties fulfilled the condition precedent to have their respective accountants discuss discrepancies and come to an agreed on sum, if possible.[10] The court’s finding that the parties failed to abide by their agreement to resolve child support disputes themselves before resorting to judicial intervention is the genesis of the court’s order.

         Rather than rewriting the agreement, the court’s order seeks to facilitate its enforcement by providing the parties with a timeline for exchanging information as required by the agreement. The parties are to instruct their accountants, ‘‘as per the previous ruling of Judge Tindill, to utilize the New York child support guidelines formula in general, and the precise illustrations contained in paragraph 7 on pages 16 and 17 of their [agreement] in particular (including the use of adjusted gross income . . .), in order to prepare the necessary calculations.’’ The parties’ accountants are to discuss the claimed arrearage as contemplated by the court’s order. The court stated that to insure full compliance with the current court order, its order was necessary given the evidence presented to the court on September 6 and 7, 2016, and the current New York child support order. Moreover, the order was necessary to narrow the issues in dispute at any future hearing. In other words, the court ordered the parties, who appeared unable or unwilling to abide by the clear requirements of their agreement, to do what they should have done before the plaintiff filed her motion for contempt. We also conclude that the court’s including the term ‘‘adjusted gross income’’ in its order did not rewrite the agreement because the term is incorporated, by way of example as to how the defendant’s basic child support obligation was to be calculated, in the agreement that became part of the New York judgment of dissolution.[11]

         Moreover, the plaintiff has not demonstrated that she was harmed by the court’s order. As the court stated, the parties were to provide their respective accountants with the relevant financial information, and they were to meet and resolve any differences using the New York child support guidelines. The objective of the court’s order is to have the accountants and the parties reach an agreement regarding the defendant’s basic child support obligation. If they can agree, there is no need for the parties to seek judicial intervention.

         For the foregoing reasons, we conclude that the court did not rewrite the agreement. The plaintiff’s claim, therefore, fails.

         B

         The plaintiff also claims that the court erred by failing to award her attorney’s fees and costs (1) to oppose the defendant’s unsuccessful effort to invalidate a provision of the agreement and (2)to enforce the agreement’s default provision regarding addon child support. The essence of the plaintiff’s claims is that when the court adjudicated her motions for contempt and for attorney’s fees and costs, it applied the wrong legal standard and failed to enforce the parties’ agreement because the defendant breached the agreement. We disagree that the court erred in declining to award the plaintiff attorney’s fees and costs.

         Generally, we apply the abuse of discretion standard when reviewing a trial court’s decision to deny an award of attorney’s fees. ‘‘Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.’’ (Citation omitted; internal quotation marks omitted.) Munro v. Munoz, 146 Conn.App. 853, 858, 81 A.3d 252 (2013).

         ‘‘The general rule of law known as the American rule is that attorney’s fees and ordinary expense and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs . . . or a statute may confer ...


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