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Barber v. Barber

Appellate Court of Connecticut

October 1, 2019

Virginia Cha BARBER
v.
Atiim Kiambu BARBER

         Argued January 17, 2019

          Appeal from the Superior Court, Judicial District of Stamford-Norwalk, Erika M. Tindill, J.

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

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

         Lavine, Prescott and Elgo, Js.

          OPINION

         LAVINE, J.

         [193 Conn.App. 193] 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 add-on 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

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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 [193 Conn.App. 194] 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 add-on 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 change in 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 [193 Conn.App. 195] 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 Add-on 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

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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 add-on expenses. Although she did not appeal from the judgment denying her motion for contempt regarding [193 Conn.App. 196] 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 [193 Conn.App. 197] 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

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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 [193 Conn.App. 198] 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 ...


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