Opinion
No. FA 94-0543491-S
June 1, 2011
The parties came before the court at a hearing on May 12, 2011 in connection with defendant's post-judgment motions as captioned above together with the objections of the plaintiff related thereto. Each party was represented by counsel at the hearing.
As financial issues were in dispute at the contested hearing, as the plaintiff's motion for contempt, the court ordered the unsealing of the financial affidavits pursuant to Practice Book § 25-59A.
I PROCEDURAL HISTORY AND RELATED FINDINGS OF FACT
The parties' six-year marriage was dissolved by decree dated May 26, 1995 at which time the parties were represented by counsel. At the time of the decree, the parties filed a Separation Agreement dated May 26, 1995 (the agreement) which was incorporated by reference in the decree. The following provisions of the agreement are relevant to the issues raised by the above motions:
Section 4 of the agreement provides in relevant part:
Defendant Husband shall pay 50% of the premium for the children's [health insurance] coverage and 50% of the unreimbursed health related expenses for the minor children including medical, dental, orthodontic, optical, prescriptions, psychological or psychiatric expenses.
Section 8 provides as follows:
The parties agree to be equally responsible for the post high school education of the minor children including tuition, room board, fees and transportation. Nothing contained in this agreement is intended to dissuade the minor children from applying for any and all scholarships, loans, grants, and/or financial aid which may be available to them. The parties (sic) contribution shall not exceed the then in-state tuition charged to a student at the University of Connecticut.
The plaintiff filed a Motion for Modification Post-Judgment dated June 12, 2008 (145) seeking to, inter alia, modify the language on the payment for college. On July 23, 2008 the parties, each of whom was self-represented, presented an agreement to the court in connection with the Plaintiff's motion which included the following provisions: "Parties agree to incorporate the language of the handling of payment of post secondary education as attached." The attached language provided, in part, as follows: "With respect to payment of the children's post high school educational expenses, as soon as the requisite financial information is provided in writing by the college(s), the Plaintiff will provide the Defendant with the expenses for college(s) for the semester/year and the parties' respective share of such expenses." The remaining provisions of the fifteen-line provision relate to the timing of and the payee for the defendant's requisite share of the applicable expenses. The agreement was accepted and ordered by the court, Epstein, J., on July 23, 2008.
On November 8, 2010, the plaintiff filed a Motion for Contempt claiming, inter alia, the defendant failed to pay 50% of the unreimbursed medical expenses for each child and 50% of college expenses for each child. On December 21, 2010, the parties appeared in court to present an agreement resolving all matters of the plaintiff's contempt motion; the plaintiff was represented by counsel and the defendant was self-represented. At the time of such agreement, the eldest child of the parties was twenty and the younger child was seventeen (she will turn eighteen on August 30, 2011).
The parties' agreement included a determination of arrearages for child support, the children's health insurance and unreimbursed medical expenses and college expenses for both children and a plan for the defendant to repay the arrearages.
On January 18, 2011, the defendant filed the Motion for Order Post-Judgment (155) and a Motion to Reargue Post-Judgment (156). On February 9, 2011, the court upon consideration of the Motion to Reargue Post-Judgment denied the same. The plaintiff filed an Objection to the Motion to Reargue on February 15, 2011 (157). Neither the plaintiff nor her attorney of record received a copy of the Motion to Reargue from the defendants and the court notes it was not certified as having been sent to either of them.
The defendant further filed a Motion for Modification Post-Judgment on January 18, 2010 (154) to which the plaintiff filed an Objection to Motion for Modification (154) and a Motion to Dismiss dated March 21, 2011 (164). At argument on May 12, 2011 the defendant acceded to the merits of the Motion to Dismiss. The court granted the Motion to Dismiss on the same day.
The plaintiff filed the Motion for Contempt on February 18, 2011 (160).
On March 30, 2011, the defendant thereafter filed the Motion to Reopen or Set Aside Orders dated December 21, 2010 (166) and the Motion to Reopen, Set Aide and/or Clarify Judgment of Dissolution dated May 26, 1995 (165). The plaintiff had not received the motions but objected to them at the hearing on May 12, 2011.
Additional facts shall be set forth below as warranted.
II ANALYSIS AND ADDITIONAL FINDINGS OF FACTS A. Motion to Reopen, Set Aside and/or Clarify Judgment of Dissolution Dated May 26, 1995 (167)
The defendant argues the language of the agreement in Section 8 concerning the payment of post-high school education expenses is ambiguous and represents a mistake of the parties. He argues that as the language does not set forth any limit on the duration of the obligation of the parties to fund "post high school education" and there is no limit to the degrees as to which the obligation extends. Further, he claims the language relating to the children taking loans for the post-high school education is ambiguous as it is not clear if the children are obligated to apply for loans and grants and therefore the parties' obligation to fund such expenses would be net of the amount of loans or grants the children obtain.
The court does not agree.
The parties' agreement, which was incorporated into the dissolution judgment, constitutes a contract between the parties. Caracansi v. Caracansi, 4 Conn.App. 645, 650, cert. denied, 197 Conn. 805 (1985). Kronholm v. Kronholm, 16 Conn.App. 124, 129 (1998). In family relations cases, a judgment rendered by the trial court in accordance with an agreement or stipulation is considered to be a contract binding the parties. Tremaine v. Tremaine, 235 Conn. 45, 56-57 (1995).
As when construing contracts arising under other circumstances, when the court evaluates an agreement incorporated by reference in a family relations case, it must examine the entire document to determine whether its terms disclose "ambiguity or language reasonably subject to different interpretations." Kronholm v. Kronholm, 16 Conn.App. 124, 130-31 (1988). The question for the court "is not what intention existed in the minds of the parties but what intention is expressed in the language used . . . When the intention conveyed is clear and unambiguous, there is no room for construction . . ." (Citations omitted.) Kronholm v. Kronholm, Id. The court reviewing such an agreement must then accord the language used "its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity." (Citations omitted.) Tremaine v. Tremaine, supra, 235 Conn. 57.
The parties agreed to pay for "post high school" education. The language of the agreement does not contemplate an obligation to pay for post-baccalaureate degrees or any other degree beyond a degree next obtained after high school — such as a vocational education certification or a baccalaureate degree. The educational costs sought from the defendant are for college expenses that relate to the children's enrollment in school to obtain a bachelor's degree and not for any higher or further degree. There has been no request for funds for a post-high school educational cost beyond that of attending the University of Connecticut as an in-state undergraduate resident nor has there been a request for any funds for either child attending a post high school educational program for more than four years and therefore the claim of the defendant is premature.
As to the language on the loans or grants, the agreement is clear; the children are not dissuaded from applying for scholarships, loans, grants and/or financial aid. They are not required to do so and the court, in entering its orders at the time of judgment had no ability to require them to do so — they were not parties to the dissolution proceeding. The parties' cost is limited to the in-state tuition cost at the University of Connecticut. In the event the cost of the post-high school education exceeds the same, the parties are not pursuant to the agreement, bound to pay the same. See Tobet v. Tobet, 119 Conn.App. 63 (2010).
The defendant's motion is DENIED.
B. Motion to Reopen or Set Aside Orders Dated December 21, 2010 (166)
The defendant seeks to have the court reopen or set aside the orders entered by the court on December 21, 2010. The defendant and the plaintiff appeared in court on December 21, 2010 pursuant to a Motion for Contempt filed by the plaintiff on November 12, 2010. (152.) The plaintiff was represented by counsel and the defendant was self-represented.
The plaintiff and the defendant, after meeting with family relations, reached an agreement on the amount of the arrearages owed by the defendant for child support, unreimbursed health insurance premiums and medical expenses and educational expenses. The defendant agreed to a repayment plan. The parties and plaintiff's counsel appeared in court and presented the agreement. The court canvassed the parties on the agreement and thereafter approved and ordered the agreement of the parties. A transcript of the canvass was presented as Exhibit 1 (and is in the court file as document number 153.10). The defendant now seeks to set aside the orders claiming he entered them because he was, as a self-represented litigant, in fear of incarceration as a consequence of contempt finding. He also claims he agreed to pay for expenses that were impermissibly claimed by the plaintiff, such as medical expenses for the adult child.
The court is not convinced. The defendant chose to agree to pay the expenses presented to him on December 21, 2010. The December 21, 2010 agreement between the parties, as with the dissolution agreement itself, is considered a contract binding up the parties. See, Caracans v. Caracans, supra, 4 Conn.App. 650. The defendant has not proven that he acted under duress. He has not shown a unilateral or mutual mistake in connection with his agreement to pay the expenses as presented to him. He has not shown the plaintiff perpetrated a fraud on him or the court. The court went over the terms of the agreement with the defendant. He agreed to each of them. He represented that he was able to comply with the terms of the agreement. He agreed it was equitable. The court in reliance on the parties' statements in court approved and ordered the agreement.
The defendant claims the court was unable to find the agreement was fair and equitable since no financial affidavits were presented to the court. The court relied on the written agreement of the parties and the statements of the parties in response to the court's queries. Further, Practice Book § 25-30 permits the court to render orders in the absence of the opposing party's sworn financial statement.
General Statutes § 52-212(a) provides a mechanism by which a judgment or decree passed upon a default may be set aside within four months following the date on which the judgment was rendered. To do so the movant must show reasonable cause or that a good cause of action or defense existed at the time of the judgment and the movant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
Self-represented litigants are held to same standards as parties represented by counsel and the law applies equally to them. They are not afforded a lesser standard of compliance, and "[a]lthough we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law." (Internal quotation marks omitted.) Edelman v. Page, 123 Conn.App. 233, 242, cert. denied, 299 Conn. 908 (2010). The fact that the defendant appeared without counsel at the December 21, 2010 does not advance his claim that the orders should be reopened at this time.
The court finds the defendant has not met his burden of showing reasonable cause for the setting aside or re-opening of the court's orders.
The defendant's motion is DENIED.
C. Motion for Order Post-Judgment (155)
The defendant seeks to have the court order that the parties' obligation to pay for post-high school educational expenses of the children is net of loans and grants obtained by the children. The court will not do so. The court disagrees with the defendant's interpretation of the language of the agreement. As set forth above, the agreement is clear and unambiguous — the children are not dissuaded from applying for loans, scholarships and grants. It does not require the children to do so and therefore the language of the agreement cannot and does not mean that the parties' obligation to pay for such expenses arises only after and to the extent the cost is not covered by financial aid obtained by the children.
The defendant's motion is DENIED. The plaintiff's objection is SUSTAINED.
D. Motion for Contempt (160)
The plaintiff seeks to have the court hold the defendant in contempt for failing to comply with the terms of the December 21, 2010 order of the court.
When an allegation of contempt is made "the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order." Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, (2001). A finding of contempt cannot be based on an order that is vague and indefinite. Wilson v. Wilson, 38 Conn.App. 263, 271 (1995). "The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind." Eldridge v. Eldridge, 244 Conn. 523, 529 (1998). "Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 14 (2001). "[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." Wilson v. Wilson, supra, 38 Conn.App. 275-76; Niles v. Niles, 9 Conn.App. 240, 253-54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).
The court order of December 21, 2010 is clear and unambiguous. The order set forth the arrearages owed by the defendant to the plaintiff through November 7, 2010. He paid the child support arrearage in full on December 21, 2010. He agreed to make a $400 payment by the end of January 2011 toward the arrearages for the outstanding health insurance premiums and unreimbursed medical bills and to pay additional arrearages for such expenses by February 15, 2011. He also agreed to pay $1,000 per month toward the arrearage accrued with respect to the post-high school educational expenses of the children. Lastly, the defendant agreed to remain current on all support obligations from and after January 7, 2011.
The defendant failed to pay the $400 due on or before January 31, 2011. From December 21, 2010 to May 12, 2011 the credible evidence is he only made one payment of $100 and two payments of $50 each toward the unreimbursed medical expenses and health insurance premiums. He has made no payment toward the post-high school educational expenses.
The defendant submitted as Exhibit A a list of medical bills presented to him by the plaintiff. As evidenced thereby, the plaintiff is seeking payment of unreimbursed of medical bills for Chelsea and Bryanna. Chelsea, however, turned eighteen on January 30, 2008. Despite that fact, the defendant knowingly agreed to pay the same when he signed the December 21, 2010 agreement of the parties. In so doing, a contract between the parties was created and the court approved and ordered the agreement. See Tremaine v. Tremaine, supra, 235 Conn. 57. The time the defendant had to object to the payment of such expenses was on or before December 21, 2010. The court, as set forth above, has not found a basis upon which to reopen or set aside the December 21, 2010 agreement. He did not have to pay for the post-majority unreimbursed medical expenses of Chelsea; he agreed to do so and in so doing a valid, binding contract was created.
The defendant testified that he is unable to make the payments to which he agreed in December 2010.
The defendant has clearly failed to comply with the terms of a valid, clear and unambiguous court order. Despite his non-compliance, the defendant claims he should not be held in contempt because such non-compliance is not willful, but rather arises from his inability to pay.
The court finds, after a review of the defendant's financial affidavit, that, although he is noncompliant, the noncompliance is not willful. The court does not excuse the defendant's failure to pay, but is unable to find he is in contempt for failure to pay as he is unable to do so — despite his statement to the court to the contrary on December 21, 2010.
The motion for contempt is DENIED.
SO ORDERED.