Opinion
No. FA97-70137735S
January 25, 2010
MEMORANDUM OF DECISION AND ORDER RE MOTION #124
In a separation agreement which states that the father agrees to "contribute" to the education expenses of his children, how much should he contribute?
The motion presently before the court is the Motion for Interpretation or Clarification Post-Judgment (#124) (motion for interpretation), filed by the defendant, Ellen M. Flaherty. In the motion, the defendant asks that the court clarify the judgment of dissolution of marriage (#112) rendered by the court, Doherty, J., on September 3, 1997 (judgment). Specifically, the defendant requests that the court clarify the extent of the obligation of her former husband, the plaintiff, James J. Flaherty, Jr., to contribute financially for any expenses incurred for the post-secondary education of their children. The defendant further requests that the court make an order to effectuate and protect the integrity of the judgment as interpreted or clarified. To that end, the court finds and orders as follows.
The defendant's current last name is Nichele.
I FACTS
Based on the existing record, the following are the essential facts of this case. The parties married on June 6, 1987, in Southbury, Connecticut. They had two children, James Christopher Flaherty (J.C.), born May 31, 1990, and Sean Patrick Flaherty (Sean), born August 12, 1992. Believing that the parties' marriage had irretrievably broken down, the plaintiff brought a complaint for dissolution of marriage against the defendant on January 25, 1997, by service of process. The defendant filed an answer and a cross complaint for dissolution of marriage on January 30, 1997, on the same ground. There were no contested issues.
On September 3, 1997, the parties, the defendant was represented by counsel and plaintiff who was a practicing attorney appeared pro se, executed a separation agreement (agreement) to be incorporated into the judgment. The agreement provided for, among other things, periodic child support payments and alimony, property division, custody arrangements for the children and visitation rights. The parties' obligations with respect to the children's post-secondary education were found in paragraph 4.6 of the agreement, which provides: "[The plaintiff] agrees to contribute towards the educational expenses of each child in the event that any child desires to attend post-secondary school and is accepted at any post-secondary school. Each party shall fully cooperate in seeking other sources of financial assistance for the educational expenses, including scholarships, student loans, and the like which may be available in order to assist the [plaintiff] in discharging this undertaking." The agreement further provided in paragraph 14.9 that the agreement could not be modified except via a written instrument signed by both parties.
That same day, the court, Doherty, J., following a canvass of the parties, found the marriage to be "broken down irretrievably" and the agreement to be "fair and equitable." (Judgment, p. 2.) The court then declared the marriage dissolved, and incorporated the agreement as part of the judgment.
On December 15, 2008, the defendant filed the present motion for interpretation, attached to which is a copy of the transcript of the canvass conducted by Judge Doherty. In the motion, the defendant asserts that J.C. has been and is currently attending Franklin Pierce University. She also states that the plaintiff has only contributed $4,500 toward J.C.'s expenses for post-secondary education, which totals over $40,000 per year. The defendant argues that, considering that his yearly income is approximately $171,000 per year, the plaintiff is not contributing an equitable amount, in violation of his duty under paragraph 4.6 of the agreement. The plaintiff has not filed a responsive memorandum, although he filed a motion for summary judgment (#133), which the court, Cutsumpas, J.T.R., denied as procedurally improper.
The defendant filed this motion in addition to a previous Motion for Modification Post-Judgment (#114), to which she refers in the motion for interpretation. In that motion, the defendant sought a modification of the judgment in order to require that the plaintiff contribute an equitable amount toward the expenses incurred for J.C.'s post-secondary education. On January 21, 2009, the court, Cutsumpas, J.T.R., filed a memorandum of decision denying the motion (#128) on the ground that paragraph 14.9 of the agreement forbids the court from modifying the agreement. Soon thereafter the defendant filed an appeal with the Appellate Court. No action has yet been taken on the appeal of which the court is aware.
Testimony on the motion for interpretation was heard on December 10, 2009, after which the court ordered the parties to file briefs on the issue of the admissibility of parol evidence. The parties filed the briefs in advance of the second and final day of testimony on December 16, 2009. At the December 16, 2009 hearing, the court heard parol evidence, but reserved decision on whether it would consider the evidence. The defendant contended that the parties had an understanding that the plaintiff would contribute one-half of the children's college expenses. Conversely, the plaintiff argued that paragraph 4.6 allows him to contribute as much or as little as he wished.
II DISCUSSION
"Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper . . . A motion for clarification may be appropriate where there is an ambiguous term in a judgment . . . but, where the movant's request would cause a substantive modification of an existing judgment, a motion to open or set aside the judgment would normally be necessary." (Citations omitted; internal quotation marks omitted.) Rome v. Album, 73 Conn.App. 103, 109, 807 A.2d 1017 (2002)
Under General Statutes § 46b-66, written agreements providing for the provision of postmajority educational support may be made and incorporated into a judgment of dissolution; the terms of such provisions are enforceable in the same manner as any other provision of the agreement. Albrecht v. Albrecht, 19 Conn.App. 146, 154, 562 A.2d 528 (1989). In the present case, the defendant seeks interpretation and clarification of the plaintiff's duty under paragraph 4.6 of the agreement, made a part of the judgment, in which the plaintiff agreed to "contribute" toward post-secondary education expenses incurred by J.C. and Sean.
A Whether the Motion to Interpret Should Be Granted
Before it can rule on the motion to interpret, the court must determine that the language of paragraph 4.6 is in fact ambiguous. See Rome v. Album, 73 Conn.App. 109. "It is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts." Isham v. Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009). "[A] contract must be construed to effectuate the intent of the contracting parties . . . In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used." (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 109-10, 570 A.2d 690 (1990).
"A contract is unambiguous when its language is clear and conveys a definite and precise intent . . . In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so." (Internal quotation marks omitted.) Russell v. Russell, 95 Conn.App. 219, 222, 895 A.2d 862 (2006).
"In interpreting contract items . . . 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." Barnard v. Barnard, supra, 214 Conn. 110. "To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 539, 791 A.2d 489 (2002).
Considering how the term "contribute" is used in paragraph 4.6, the most appropriate definition is: "to give a part to a common fund or store." Webster's Third New International Dictionary. There is nothing inherent in this definition delineating the amount of the "part" to be given to the "common fund." The first sentence of paragraph 4.6 reads: "[The plaintiff] agrees to contribute towards the educational expenses of each child in the event that any child desires to attend post-secondary school and is accepted at any post-secondary school." The context surrounding "contribute" in that sentence is unhelpful in determining the extent of the plaintiff's duty as it states nothing about how much of the educational expenses the plaintiff is supposed to cover. The second and final sentence of paragraph 4.6 reads: "Each party shall fully cooperate in seeking other sources of financial assistance for the educational expenses, including scholarships, student loans, and the like which may be available in order to assist the [plaintiff] in discharging this undertaking." (Emphasis added.) This sentence provides for assistance to the plaintiff in making his contribution but it does not shed any light on the amount that the plaintiff is supposed to contribute.
In light of the second sentence of paragraph 4.6, the plaintiff's argument that such paragraph unambiguously allows the plaintiff to contribute whatever he wishes is without merit. The second sentence was included for the benefit of the plaintiff — to help him in making his contribution. It suggests that the parties did not intend to allow the plaintiff to contribute whatever he wished. If he could contribute whatever he wished, what need would he have for obtaining financial assistance for himself? Why would the parties have felt the need to include the second sentence? If the plaintiff were suffering a financial hardship, he could simply adjust his contribution level freely based on what he could afford, under his interpretation of paragraph 4.6.
The plaintiff cites Badman v. Badman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 82 0062477 (March 1, 2000, Kavanewsky, J.) ( 26 Conn. L. Rptr. 278), aff'd, 61 Conn.App. 908, 767 A.2d 1283, cert. denied, 258 Conn. 901, 782 A.2d 136 (2001), for the proposition that the term "contribute" is unambiguous. The plaintiff's citation of that case is inappropriate in two respects. First, the inquiry is not whether a term is, by itself, ambiguous but whether contractual language, when read in conjunction with the entire contract, is ambiguous. See Scinto v. Sosin, 51 Conn.App. 222, 239, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999) ("A contract is to be construed as a whole and all relevant provisions will be considered together." (internal quotation marks omitted)). Second, Badman is not on point with the present case and does not aid the plaintiff's position. In that case, the court determined that the term "equal contribution" in a similar provision in a separation agreement unambiguously required a monetary contribution as opposed to an in-kind contribution. See Badman v. Badman, supra, 26 Conn. L. Rptr. 278. The issue in the present case is not whether the plaintiff must make a contribution in the form of money, but rather how much money the plaintiff is required to contribute.
Conversely, the defendant argues that the parties understood that the plaintiff would contribute fifty percent of the expenses. In light of the language of paragraph 4.5, however, that interpretation is questionable. That paragraph provides: "The parties shall share equally in the cost of clothing, school expenses, entertainment and other similar expenses for the minor children and shall cooperate as to providing reimbursement for said expenses, one to the other as appropriate . . ." (Emphasis added.) There is no similar "share equally" language in paragraph 4.6, suggesting that the parties did not intend to require the plaintiff to cover half of the expenses as a blanket rule. The use of different language, as well as the failure to simply include post-secondary education expenses in the list of expenses in paragraph 4.5, suggests that the parties intended a different arrangement.
There is nothing within the four corners of the contract, in light of the surrounding circumstances, to indicate the extent of the plaintiff's duty, and the dueling interpretations of the parties are both equally implausible. The intent of the parties as to the extent of the plaintiff's obligation to "contribute" under paragraph 4.6 is therefore not clear and certain from the language of the agreement. Accordingly, the court finds that the language of paragraph 4.6 is ambiguous and hereby grants the motion for interpretation.
B What Was the Intent of the Parties?
"When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact." (Internal quotation marks omitted.) Isham v. Isham, supra, 292 Conn. 181. "[W]hen searching for a party's intent in a separation agreement, it is appropriate to look to the circumstances of the parties at the time the agreement is formed." Id., 185. The court heard evidence at the December 16, 2009 hearing as to the intent of the parties in crafting paragraph 4.6. The defendant offered parol evidence to which the plaintiff objected. The court agreed to hear the parol evidence but reserved judgment on whether to consider it in determining the parties' intent.
i Whether Parol Evidence Is Admissible
"The parol evidence rule does not of itself . . . forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud." (Internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 358, 727 A.2d 1260 (1999).
None of the parol evidence offered at the December 16, 2009 hearing was offered to vary or contradict any term of the agreement. Rather, the evidence was offered to elucidate the parties' intent in crafting the ambiguous language in paragraph 4.6. Therefore, the parol evidence rule is inapplicable and court will consider such evidence in interpreting paragraph 4.6.
ii Analysis of the Parol Evidence
At the hearings, the parties offered the testimony of the plaintiff and the defendant as well as five exhibits: a copy of the judgment of dissolution, marked as Defendant's Exhibit A; the transcript of Judge Doherty's canvass of the parties, marked as Defendant's Exhibit B; and copies of three e-mails exchanged between the parties, two of which are marked as Defendant's Exhibits E and F and one of which is marked as Plaintiff's Exhibit 1.
Defendant's Exhibits C and D are marked for identification only and are not full exhibits.
Both the plaintiff and the defendant recalled on the stand that there were no specific conversations or negotiations regarding paragraph 4.6 at the time the agreement was executed. Neither party could definitively say who drafted the language of the provision, although the plaintiff physically typed the agreement. The plaintiff testified that he understood that he could set the level of his contribution at will. The plaintiff also testified that the children were five and seven years of age when the parties executed the agreement and that, at the time, he was uncertain of the state his finances would be in when the children were old enough to attend college. The defendant testified that there was an understanding that each would contribute one-half of the college expenses.
In the canvass, the court asked if the plaintiff was willing to undertake the expense of contributing to the college education of J.C. and Sean, which he was not obligated to do under Connecticut law, since the children would likely be over the age of majority. The plaintiff responded in the affirmative and stated that he understood that the obligation was legally voluntary. The court then asked the defendant whether she intended, in executing the agreement, to obligate herself to contribute toward the post-secondary education of J.C. and Sean, to which she responded: "I will contribute towards that." (Defendant's Exhibit B, p. 11.) She also stated that she understood that the agreement may be construed to confer on her a binding obligation to contribute toward post-secondary education expenses. Finally, the court took note of the "mother and father's agreement to assume some extraordinary expenses for the children as part of the written agreement concerning post-secondary school education and other obligations." (Defendant's Exhibit B., p. 15.)
The three e-mails exchanged between the parties were sent between August 13, 2008, and September 11, 2008, more than ten years after the parties executed the separation agreement. Only the e-mails marked Defendant's Exhibit E and F, an e-mail sent by the defendant to the plaintiff on September 8, 2008, and a reply e-mail sent by the plaintiff on September 11, 2008, respectively, referenced college expenses. In Exhibit E, the defendant requested a written confirmation that the plaintiff would agree to pay 50 percent of the tuition rate for the University of Connecticut. She wrote that, if they are to both contribute, it should be an equal contribution and that this was "not a big deal." The defendant expressed a desire to come to an agreement and a desire to minimize the amount of student loan debt to be incurred by J.C. and Sean. She also stated that she just wanted the plaintiff to pay his fair share. In Exhibit F, the plaintiff did not directly respond to the request to pay one-half of the University of Connecticut tuition rate. Instead, he wrote that the defendant had no idea what was a "big deal" for him and that she was unaware of his financial situation. He objected to her suggestion that he was not paying his fair share of support. He also stated that the amount of student loans that J.C. would incur if he finished at Franklin Pierce University would hardly constitute a "mound" and it would be good for him to bear a share of the cost of his own education, as the plaintiff himself did for his own education. Finally, he asked that, in the future, the defendant consult him before incurring "extraordinary expenses" to which he would have to contribute.
The e-mail marked as Plaintiff's Exhibit 1 referenced the division of costs for driver's education for Sean as well as life insurance costs. It did not include any discussion of college expenses.
Nothing in the testimony or the exhibits submitted is probative of the parties' intent, at the time they executed the separation agreement, as to the amount that the plaintiff would be required to contribute, except that it showed that both parties held widely divergent and questionable subjective interpretations of paragraph 4.6. See Part II.A. The canvass reveals nothing regarding the amount the parties intended the plaintiff to contribute. The e-mails, at best, demonstrate that the defendant sought to obtain an agreement to resolve this very issue and that she made an offer to accept one-half of the tuition rate at the University of Connecticut, which the plaintiff rejected.
iii Determination of the Parties' Intent
In Cattaneo v. Cattaneo, 19 Conn.App. 161, 162, 561 A.2d 967 (1989), which is very similar to the present case, the parties executed a written separation agreement, which was incorporated as part of the judgment of dissolution, that stated in relevant part: "each of the parties is to contribute according to his or her respective financial ability to the cost of a four year college education for each of the minor children." (Internal quotation marks omitted.) The plaintiff filed a motion for clarification seeking a determination of "the specific extent to which the defendant was required to contribute to the children's college education and sought an order as to that specific sum or percentage." Id., 163. The trial court granted the motion, ordering the defendant to pay 65 percent of the college tuition bills. Id. The Appellate Court, in finding that the trial court had jurisdiction to enter its order, determined that the parties had failed to come to an agreement as to the amounts to be contributed by both parties. Id., 165.
The provision in Cattaneo, which the Appellate Court found to represent a failure to agree on the amount of contribution, is more specific than the provision in the present case because the Cattaneo provision at least provided a criterion with which to determine the level of contribution — respective financial ability. Therefore, in light of Cattaneo and the dearth of extrinsic evidence as to the parties' intent at the time they executed the agreement, the court finds that the parties did not come to an agreement as to the amount that the plaintiff is required to contribute.
C Extent of the Plaintiff's Duty to Contribute
As stated by the Appellate Court in Cattaneo v. Cattaneo, supra, 19 Conn.App. 164, "[t]he power to enforce an agreement involving post-majority child support may include the power to determine the amount each party is required to contribute under the terms of the agreement, if the parties' agreement contemplates such a determination by the court." In regards to the case before it, the court further stated: "The failure of the parties to agree on the amount each is to contribute to the college education costs would render the agreement without effect unless the court's power to enforce the agreement included the power to make a determination of the amount due from each party under its terms. Although . . . the agreement does not expressly contemplate a determination by the court of the amount of the monetary contribution due from each party, we conclude that it implicitly contemplates such a determination." Id., 165.
As in Cattaneo, in the present case, if the court failed to make a determination as to the amount of the plaintiff's contribution, paragraph 4.6 would be without effect. Therefore, the court finds that the parties, by simply including the term "contribute" without coming to an agreement as to the amount, implicitly contemplated that the court would later provide the amount that the plaintiff is to contribute. Accordingly, the court has the power to fix the amount of the plaintiff's contribution.
The court must supply the term fixing the amount of the plaintiff's contribution in a manner consistent with the parties' intent in including paragraph 4.6. "[A] contract must be construed to effectuate the intent of the contracting parties." (Internal quotation marks omitted.) Barnard v. Barnard, supra, 214 Conn. 109. The parties' intent in enacting paragraph 4.6 was to ensure that, if J.C. and Sean chose to enter a program of post-secondary education, the plaintiff would bear some of the responsibility for ensuring that each child would be financially able to attend such a program.
Consistent with the parties' intent, the court finds that the plaintiff should be required to contribute a reasonable amount toward the post-secondary educational expenses incurred by J.C. and Sean considering the following factors: (1) the total amount necessary to finance such education, (2) the relative financial abilities of the parties as of the time the expenses come due, and (3) the amount of money the parties can obtain from scholarships, loans and the like to reduce the amount that the parties must contribute out of their own pockets.
III ORDER
In light of the preceding determination, the court makes the following order:
1. The plaintiff is ordered, henceforth, to contribute a reasonable amount toward the post-secondary educational expenses incurred by J.C. and Sean as such expenses become due. The parties shall come to an agreement, at the appropriate time, as to what constitutes a reasonable amount considering the individual circumstances of each child and the factors found in Part II.C. In the event of a failure to come to an agreement, the parties are to return to court for a determination.
2. The plaintiff is ordered to reimburse the defendant for a reasonable amount of the expenses already incurred for the post-secondary education expenses of J.C. and Sean, with a credit for amounts already paid toward such expenses. The parties shall come to an agreement on what constitutes a reasonable amount considering the factors found in Part II.C. In the event of a failure to come to an agreement, the parties are to return to court for a determination.
3. As required by paragraph 4.6 of the agreement, the defendant is ordered to fully cooperate with the plaintiff in undertaking efforts to obtain financial assistance in the form of loans, scholarships and the like. As directed by Part II.C, any such financial assistance shall be taken into account in determining what constitutes a reasonable amount that the plaintiff must contribute.