Opinion
FA020068180S
02-10-2017
Clifford Gay v. Betty Jean Gay
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR CONTEMPT #151 AND MOTION TO MODIFY #152
Angelo L. dos Santos, Senior Judge.
This matter arises from a motion to open and modify a judgment of dissolution filed by the defendant, Betty Jean Chiangi, on September 2, 2016. On the same day, the defendant also filed a motion requesting that the plaintiff, Clifford Gay, be adjudged in contempt of court. The plaintiff did not file an objection to either motion. A hearing was held on the motions on October 12, 2016. Both parties were represented by counsel. For reasons more fully discussed below, the motion to open and modify is denied without prejudice and the motion for contempt is denied. Judgment is entered on the parties' stipulated agreement.
The defendant's name was Betty Jean Gay at the time of dissolution.
I
PROCEDURAL HISTORY
On November 4, 2002, the court, Cosgrove, J., entered a judgment of dissolution (dissolution) of the marriage between the plaintiff and the defendant. At the time, the plaintiff and the defendant had submitted to the court a written separation agreement (agreement) dated November 1, 2002 which was accepted by the court and incorporated into the judgment of dissolution. The parties have a child, Spencer Gay (Spencer), who was born on September 19, 1998, and was issue of the marriage. The dissolution judgment addressed the issues of custody, child support, and other child-related costs. This included orders on how the parties were to provide health insurance and split medical costs for the, then, minor child. In addition, the court retained jurisdiction to enter higher educational support orders for the parties' child.
The dissolution specified that this was done pursuant to Public Act 2002, No. 02-128, which took effect on October 1, 2002. This is now General Statutes § 46b-56c.
On October 11, 2016, the plaintiff submitted his most recent financial affidavit, and on October 12, 2016, the defendant submitted her most recent financial affidavit.
II
DISCUSSION
There are two motions filed by the defendant. The defendant's motion for contempt claims that the plaintiff is in contempt of court for failing to pay for medical expenses for the parties' child, Spencer. In the motion to open and modify judgment, the defendant requests that this court enter an educational support order requiring the plaintiff to contribute to Spencer's college educational costs.
A
Medical Expenses
In her motion for contempt, the defendant refers to the language in the parties' dissolution regarding the cost of medical expenses for Spencer. The judgment provides: " The [d]efendant shall get the child covered with medical insurance under the Husky Plan. Until the child is covered under the Husky Plan, the [p]laintiff shall cover the minor child on his health insurance as available to him at a reasonable cost and the parties shall split the cost of said health care premiums. The parties shall split any unreimbursed medical expenses pursuant to the guidelines with [the] [p]laintiff paying 54% and [the] [d]efendant paying 46% per the State's Guidelines." The defendant claims that the plaintiff owes her for his share of unreimbursed medical expenses. The defendant testified that Spencer was no longer eligible for the Husky Plan after November 1, 2014. The defendant seeks one-half of the cost of the premiums to provide Spencer health insurance and dental insurance from November 1, 2014 until the filing of her motion and going forward. Finally, the defendant seeks attorneys fees and costs.
1
Unreimbursed Medical Expenses
The defendant's claim regarding unreimbursed medical expenses was addressed at the hearing. In her motion, the defendant alleged that on February 6, 2015, she provided the plaintiff with a breakdown of copays and deductibles that she had paid and she claimed reimbursement in the amount of $1,432.52. The defendant followed up with a request for payment from the plaintiff on July 29, 2015. Since that time, the plaintiff has made three payments totaling $300 towards his share of the costs. In addition, there were additional expenses incurred totaling $180.36. Therefore, at the time of filing the motion, the plaintiff's share was $1,312.88. At the hearing on the motion, the parties stipulated to the plaintiff's unreimbursed amount of $1,312.88. The court then accepted that stipulation and found that the amount was owed from the plaintiff to the defendant to be $1,312.88.
2
Medical Insurance Expenses
The defendant's next claim is that the plaintiff is responsible for half of the cost of Spencer's health insurance since the time that he was no longer eligible for the Husky plan, and that he is in contempt of court for not having paid his share. " Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). " [T]he threshold question . . . [is] whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt." Id., 693. Once a court determines that the court order was sufficiently clear and unambiguous, the court must determine whether " the violation was wilful or excused by a good faith dispute or misunderstanding." Id., 693-94.
" 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 . . . When construing a contract, we seek to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . 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 . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract . . . When the language is clear and unambiguous . . . the contract must be given effect according to its terms, and the determination of the parties' intent is a question of law." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Isham v. Isham, 292 Conn. 170, 180-82, 972 A.2d 228 (2009). " It must be noted . . . that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Finally, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous." (Citations omitted; internal quotation marks omitted.) Id., 180-82.
The language in the parties' dissolution clearly states that " [u]ntil the child is covered under the Husky Plan, the [p]laintiff shall cover the minor child on his health insurance as available to him at a reasonable cost and the parties shall split the cost of said health care premiums." The language in the judgment continues to describe how the parties should split any unreimbursed costs. However, the judgment does not address how the parties should provide insurance for Spencer should he no longer be eligible for the Husky plan, or how the parties should address any expenses that the defendant incurs in providing Spencer with medical insurance. Because the judgment is silent on the issue, the court concludes that the plaintiff is not in contempt for failing to pay half of the health premiums incurred by the defendant. Therefore, the motion for contempt is denied.
The modification of support decrees are governed by General Statutes § 46b-86. Section 46b-86(a) provides: " Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . for the other party or a minor child of the parties may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either . . ." Nevertheless, " the language of § 46b-86(a) . . . provides in relevant part: 'No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party' . . . [Section] 46b-86(a) prohibits retroactive modification of an existing support order." (Citations omitted; internal quotation marks omitted.) Farmassony v. Farmassony, 164 Conn.App. 665, 671, 138 A.3d 417 (2016).
This bar on retroactive modification would apply to any language providing for the cost of medical insurance. " The child support and arrearage guidelines, as set forth in § 46b-215a-1 of the Regulations of Connecticut State Agencies, provide that '[c]hild support awards means the entire payment obligation of the noncustodial parent, as determined under the child support and arrearage guidelines, and includes current support payments, health care coverage, child care contribution and periodic payments on arrearages.' The term 'current support, ' as used in the guidelines, is defined as 'an amount for the ongoing support of a child, exclusive of arrearage payments, health care coverage and a child care contribution.' Regs., Conn. State Agencies § 46b-215a-1 . . . It is a principle of statutory construction that a court must construe a statute as written . . . We are not permitted to supply statutory language that the legislature may have chosen to omit . . . The retroactive language in § 46b-86(a) was enacted in 1990; see Public Acts 1990, No. 90-188, § 1; and has been amended several times. If the legislature intended that only current support not be subject to retroactive modification . . . it could easily have so specified. Instead, it used the broader term 'support' to identify the types of awards that are not subject to retroactive modification." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 671-73. The court concludes that a retroactive modification of health care coverage is barred by § 46b-86(a).
3
Legal Fees
The defendant requests attorneys fees and costs associated with the motion for contempt. At the hearing on the motion, the court accepted the stipulation as to the amount owed by the plaintiff on the unreimbursed medical costs. The issue presented is whether the plaintiff is in willful contempt of the court's order. " [C]ontempt proceedings are a proper means of enforcing a court order of child support. A willful failure to pay court ordered child support as it becomes due constitutes indirect civil contempt." O'Toole v. Hernandez, 163 Conn.App. 565, 576, 137 A.3d 52, cert. denied, 320 Conn. 934, 134 A.3d 623 (2016). " Once a contempt has been found, [General Statutes § 52-256b(a)] establishes a trial court's power to sanction a noncomplying party through the award of attorneys fees . . . The award of attorneys fees in contempt proceedings is within the discretion of the trial court." (Footnote omitted; internal quotation marks omitted.) Id., 577.
At the hearing, the plaintiff testified that he did not dispute the amount of unreimbursed medical expenses that he owed to the defendant and that he started to make payments on his obligation. Further, he testified that he was not aware then of a timeline for paying the total amount. He testified that until recently he had continually made his child support payments in the amount of $160 a week. Because he was no longer liable for child support payments, he offered that he continue to make payments to the defendant of $160 a week until the amount that he owed her was paid in full. On cross examination, the plaintiff testified that he would have continued to make payments on unreimbursed medical costs that he owed to the plaintiff, but he did not have the specific amount at the time. When questioned about the breakdown of costs that the defendant sent him, the plaintiff admitted that he had never opened the letter containing the breakdown from the defendant. This conduct by the plaintiff is neglectful, but not necessarily willful conduct. The court having considered the testimony of the parties concludes that the defendant has failed to establish by credible evidence that the plaintiff is in willful contempt of the court order with respect to the payment of unreimbursed medical costs. Therefore, the request for legal fees by the defendant is denied.
B
Higher Education Support Order
The defendant's motion to open and modify judgment requests that the court enter a higher educational support order requiring the plaintiff to contribute to the college expenses for Spencer. General Statutes § 46b-56c(a) provides that " an educational support order is an order entered by a court requiring a parent to provide support for a child . . . to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age."
The parties' dissolution judgment included the retention of jurisdiction to enter an educational support order. " On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution . . . and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date ." (Emphasis added.) General Statutes § 46b-56c(b)(1). In support of her motion, the defendant testified that Spencer graduated high school last year and is currently enrolled as a full-time student at the University of Connecticut--Avery Point (Avery Point). The defendant testified that Spencer did inform the plaintiff of his intent to pursue higher education. Further, Spencer is living at her home and commutes to school. The defendant had paid for all of Spencer's books for school. In addition, she took out a parental student loan and paid for Spencer's semester at school for the fall of 2016. Also, the defendant and her present husband provide Spencer with a car to commute to school. Despite all of her assistance to their son, the defendant only requests that the plaintiff share in the cost of helping Spencer with tuition and his books for his courses. Spencer is a good student receiving " high honors" grades.
The defendant submitted a current financial affidavit and testified regarding her finances. She is currently unemployed and has filed an application for unemployment compensation. Her last day of employment was on August 18, 2016. While employed she earned $16.77 per hour and worked forty hours per week. The defendant is currently seeking employment and that she anticipates being employed shortly. On cross examination, the plaintiff questioned her about multiple deposits into a checking account that she holds jointly with her husband. On redirect, she testified that none of the deposits were deposits made by her and that the deposits were not from her sources of income.
The plaintiff's base salary is $450 and he makes approximately $874 in commissions. Further, he testified that he owes $10,000 in credit card debt and taxes. In addition, the plaintiff has sole custody of his nine-year-old daughter whom he supports.
The plaintiff's most recent financial affidavit indicates that these earnings are on a weekly basis.
The plaintiff testified that under his present circumstances, he cannot contribute to Spencer's college education. He explained that Spencer is eighteen years old, employed and that Spencer does not pay rent. He testified that if Spencer could not afford college that he had the option of joining the military.
The defendant submitted two exhibits, including a print out for the cost to attend the University of Connecticut at Avery Point and a receipt for Spencer's school books. The cost of attending school is $7,000 per semester and his books. The plaintiff also submitted two exhibits. Both were print outs of the defendant's bank statements from two accounts she has jointly with her husband. At the end of the hearing, the defendant's counsel stressed that the defendant provides Spencer's housing, meals, and transportation, and that she is only requesting assistance with tuition at Avery Point. Counsel for the plaintiff argued that the plaintiff had been paying child support for Spencer until recently. Counsel for the plaintiff argued that his client is not wealthy, that he has another child to care for, and that he has debts. Counsel also argued that college is not a right, and that Spencer could take out loans, work, or join the military in order to pay for his education. Finally, counsel for the plaintiff emphasized that the defendant had a change in her financial circumstances due to her marriage to her current spouse.
The court must first determine whether the parties would have provided educational support to Spencer if they had not separated before an educational support order could issue. " The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact." (Emphasis added.) General Statutes § 46b-56c(c). " The finding . . . merely may not be implied, but must be expressed." Sander v. Sander, 96 Conn.App. 102, 117-18, 899 A.2d 670 (2006).
The dissolution of marriage between the parties occurred many years ago. Neither of the parties specifically testified that they would have provided educational support to their son if they had not separated. Our Appellate Court has set out the different factors to consider when determining this issue. Glenn v. Glenn, 133 Conn.App. 397, 35 A.3d 376 (2012). In Glenn, the court outlined the factors, as follows; (1) that the parties' dissolution had expressly provided for the court to retain jurisdiction and allocate college expenses; (2) that the parent arguing against the order had offered other funds in lieu of an order, and had requested the court refrain from issuing an order only while he was not working; and (3) that the parent arguing against the order did not provide evidence or argue that he would not have supported the child if the family had stayed intact, but instead focused only on his present financial issues and inability to pay the amount requested. Glenn v. Glenn, supra, 133 Conn.App. 402-03. Moreover, the court noted that the parent requesting the order had gone into debt in order to pay for the college education. Id., 403.
The facts in the present case are similar to those in Glenn . The parties asked the court entering their dissolution decree that the court retain jurisdiction to enter an order for the cost of their son's post-secondary education. Here, the plaintiff has not offered other assistance in lieu of an actual money contribution toward his son's tuition and books. Instead, he focused on his current financial situation and his support of his young daughter who resides with him. On the other hand, the defendant appears to be doing all that she can to assist their son with the cost of his post-secondary education. She provides Spencer room and board, a car for transportation and she paid for Spencer's books. Finally, she took out a parental student loan prior to filing her motion. After considering the testimony of the parties, the court concludes that had the parties stayed together they would have provided for their son's post-secondary education.
" [A]fter making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including: (1) [t]he parents' income, assets and other obligations, including obligations to other dependents; (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available; (5) the child's preparation for, aptitude for and commitment to higher education; and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend." General Statutes § 46b-56c(c). The defendant's personal financial condition is worse than the plaintiff's. Despite her limitations, she has shown a commitment to have Spencer succeed in college. The plaintiff expected to earn $68,000 last year. He has a 9-year-old daughter living with him. He owns his own home and he has about $11,000 in outstanding debts.
Considering all of the evidence, including the testimony and exhibits, the court does not have enough evidence or information to properly consider the remaining factors. While the plaintiff testified that Spencer works, no evidence was provided concerning his income or his ability to earn income. The defendant failed to provide evidence regarding the availability of other financial aid, such as scholarships, loans or grants. Finally, this court does not have any information on Spencer's academic record, or his preparation for, aptitude for, and commitment to higher education. While this court may be able to draw inferences from the defendant's comments on Spencer's " high honors" and from his acceptance to Avery Point, it is not enough to determine what other funding may be available to him. See Barbour v. Barbour, 156 Conn.App. 383, 396-97, 113 A.3d 77 (2015) (" even though the plaintiff's motion alleged that the plaintiff had applied for and exhausted all available options for scholarships and other sources to reduce the college expenses, the plaintiff provided no testimony or other evidence addressed to this bare allegation"); Stallings v. Stallings, Superior Court, judicial district of Waterbury, Docket No. FA-06-4010011-S (February 17, 2016, Nastri, J.) (61 Conn.L.Rptr. 783, ) (" The court must have access to . . . college financial records, including the cost of tuition, loans, grants, or scholarships received or available, to determine the total amount of . . . college expenses and the resources available . . . to meet those expenses"); Farid v. Farid, Superior Court, judicial district of New Haven, Docket No. FA-09-4011049-S (February 26, 2013, Murphy, J.) () (denied for not providing enough information in order to consider five of the six required subdivisions); Slot v. Slot, Superior Court, judicial district of New Haven, Docket No. FA-03-0473596-S (December 29, 2006, Frazzini, J.) () (" In deciding whether to enter an educational support order, § 46b-56c(c) directs the court to consider various factors, including: the parents' income, assets and other obligations; 'the child's need for support . . . considering the child's assets and the child's ability to earn income'; and the availability of financial aid, including grants and loans").
III
ORDERS
At the hearing on October 12, 2016, the plaintiff agreed to pay the defendant the sum of $1,312.88. Therefore, the plaintiff is ordered to pay the total amount owed on or before March 15, 2017. Enough weeks have elapsed since the hearing for the plaintiff to have paid the outstanding amount owed to the defendant.
The motion to open and modify judgment, with regard to a higher educational support order is denied for the period of the fall semester at Avery Point. The defendant can file another motion in order for the court to consider whether a post-secondary educational support order is appropriate in this case.