Opinion
FSTFA124023950S
09-07-2017
John Campbell v. Patricia Campbell
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTIONS FOR MODIFICATION AND CONTEMPT, POSTJUDGMENT
Donna Nelson Heller, J.
The plaintiff John Campbell and the defendant Patricia Campbell were divorced on February 10, 2015. The dissolution judgment (Novack, J.T.R.) (#134.55) incorporated by reference the parties' separation agreement, dated February 10, 2015 (the February 2015 separation agreement) (#133.00), discussed more fully below.
On June 13, 2016, the defendant moved by order to show cause, postjudgment, for a finding that the plaintiff was in contempt for violation of certain terms of the February 2015 separation agreement (#141.00). In a second motion for contempt, postjudgment (#143.00), also filed on June 13, 2016, the defendant seeks to have the plaintiff held in contempt for failing to comply with other provisions of the February 2015 separation agreement. On June 23, 2016, the defendant filed a motion for modification, postjudgment (#144.00). The defendant filed a third motion for contempt, postjudgment (#152.00) on January 27, 2017, in which she alleges that the plaintiff has failed to pay unallocated alimony and child support pursuant to the February 2015 separation agreement.
The parties, both of whom were represented by counsel, were before the court on February 15, 2017 and April 5, 2017. The court heard testimony from each party, reviewed the exhibits that were admitted into evidence, took judicial notice of the contents of the court file, and reserved decision at that time.
I
The plaintiff and the defendant are the parents of four children: Jessica, born on May 5, 1997; Jack, born on June 15, 1999; Charlotte, born on December 26, 2001, and Isabelle, born on October 26, 2005. In her first motion for contempt, postjudgment (#141.00), the defendant claims that the plaintiff has wilfully violated the February 2015 separation agreement because he has failed to pay his share of certain expenses that the defendant has incurred or will incur for the children's extracurricular and school-related activities and their medical, dental, and orthodontia supplies and treatment.
A
Article VI, paragraph 6.2 of the February 2015 separation agreement provides that the parties shall share equally the expenses for the minor children's mutually agreed-upon extracurricular activities, " including but not limited to sports, lessons, camp or other summer activity, tutors, school activities/fees, standardized testing fees, college application fees, SAT prep courses, driving school costs, automobile insurance premiums, consent not to be unreasonably withheld. The non-paying party shall reimburse the paying party for his or her share of said expenses within five (5) days of being presented with proof of payment of same by the paying party." The defendant contends that the plaintiff owes her $878.89 for his share of certain fees and expenses for the children's school-related and extracurricular activities and $496.23 for other fees and expenses incurred during the period 2015 through April 5, 2017. She testified that the plaintiff either consented to these expenses or unreasonably withheld his consent.
The plaintiff challenges some of these expenses as being outside the scope of the extracurricular activities defined in paragraph 6.2 of the February 2015 separation agreement. As to the other unpaid expenses, he testified that he did not consent, rescinded his consent, and/or consented and thereafter set off his share of these expenses from the amount that he claims the defendant owes him because he overpaid unallocated alimony and child support. He also said that he did not receive notice of the most recent expenses until the night before the last court date.
The court finds that the defendant is entitled under paragraph 6.2 to be reimbursed by the plaintiff for some of the $878.89 in fees and expenses for school-related and extra-curricular activities for which she seeks reimbursement; however, gifts, school supplies, and food are expenses that should be paid from child support rather than expenses to be shared by the parties under paragraph 6.2. Therefore, the following expenses should be deducted from the defendant's claim for reimbursement of fees and expenses for the children's school-related and extracurricular activities:
Item #1--Golf team coach's gift in 2015 (included in claim for $69.50)
Item #2--Christmas gift for teacher and two nurses in 2015 in the amount of $18.98
Item #6--Isabelle's science project in the amount of $6.00
Item #8--School supplies for minor children in the amount of $17.99
Item #12--Isabelle school project in the amount of $4.24
Item #17--Director's gift (included in claim for $53.68)
In addition, the defendant's claim for reimbursement of one-half of Jessica's sophomore year second semester contribution, in the amount of $316.50, is outside the scope of paragraph 6.2 because Jessica has reached the age of majority. Paragraph 6.2 does not include the children's post-majority fees and expenses.
With respect to the defendant's claim for reimbursement of expenses for the minor children's other activities, in the total amount of $496.23, the court finds that the defendant is entitled to be reimbursed by the plaintiff for all of these expenses except Item #4. The claim for reimbursement for Isabelle's birthday party gift, in the amount of $15.48, is outside the scope of paragraph 6.2. Although there was conflicting testimony as to whether the plaintiff rescinded his consent to Charlotte's voice lessons, the court finds that he consented to that activity, and he is, therefore, obligated to reimburse the defendant for his share of the cost.
The court finds that the plaintiff is required to reimburse the defendant for his share of the fees and expenses that she paid for the children's school-related and extracurricular activities in the amount of $515.18, less the cost of the gifts for the golf coach (Item #1) and the director (Item #17). The plaintiff shall also reimburse the defendant for his share of the other fees and expenses that she paid in the amount of $480.75.
B
Pursuant to Article IX, paragraph 9.2 of the February 2015 separation agreement, the parties shall equally pay " for the benefit of the children, all reasonable medical, optical, surgical, hospital, psychiatric, psychological and nursing expenses, and the cost of prescriptive drugs (" medical expenses") and dental and orthodontia expenses so long as they are obligated to support or educate the child with respect to whom the expense is incurred, as provided in this Agreement; provided, however, that no psychiatric or psychological or orthodontia expenses or elective surgery or treatment shall be incurred without the prior consent of both parties, which consent shall not be unreasonably withheld."
The defendant contends that the plaintiff owes her $245.68 for his share of the cost of the children's medical supplies and other medical expenses incurred during the period 2015 through April 5, 2017. The court finds that certain of these items do not fall within the scope of the expenses to be shared by the parties under paragraph 9.2--specifically, the cost of Isabelle's special food, included in Item #2, and Charlotte's food responsibility for Theatre 308, in Item #3. The plaintiff shall reimburse the defendant pursuant to paragraph 9.2 for the remaining expenses in the amount of $233.35, less the cost of the food included in Item #2.
The defendant also seeks reimbursement from the plaintiff for his share of the cost of gum care for Jack, in the amount of $22.32, and laughing gas for Isabelle's teeth extraction, in the amount of $60. The court finds that the plaintiff is obligated to pay the defendant $82.32, representing his share of these expenses.
The defendant asks the court to order the plaintiff to pay the full cost of Jack's second orthodontia treatment, in the amount of $6,850; half the cost of Isabelle's orthodontia treatment, in the amount of $2,925; and half the cost of hypomineralization treatment for both Isabelle and Charlotte, in the amount of $150, to address their mottled and discolored teeth. The defendant testified that she has not incurred these expenses to date because she cannot advance the funds. The plaintiff testified that he did not consent to these expenses because he was not able to afford them on his current income. He also objected to paying for Jack's orthodontia after Jack has reached the age of majority.
Jack turned eighteen on June 15, 2017.
The court finds that plaintiff's refusal to consent to Jack's orthodontia treatment is not unreasonable, in view of Jack's age and the parties' current financial circumstances. With respect to Isabelle's orthodontia treatment and Isabelle and Charlotte's hypomineralization treatment, however, the court finds that the plaintiff's consent has been unreasonably withheld. The plaintiff shall cooperate with the defendant in arranging a payment plan for Isabelle's orthodontia treatment, and he shall pay his share of the cost of the orthodontia and hypomineralization treatments when these expenses are incurred.
C
The defendant seeks a finding that the plaintiff is in contempt for his failure to reimburse her for his share of the children's expenses pursuant to paragraphs 6.2 and 9.2 of the February 2015 separation agreement. " Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Citation omitted; internal quotation marks omitted.) Wilson v. Cohen, 222 Conn. 591, 596 n.5, 610 A.2d 1177 (1992). " Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt . . ." (Emphasis in original; citations omitted; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). " In a civil contempt proceeding, the movant has the burden of establishing . . . the existence of a court order and noncompliance with that order . . ." (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall, 151 Conn.App. 638, 651, 97 A.3d 1 (2014). Indirect civil contempt, as is alleged here, must be proven by clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015).
" To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." (Citations omitted; internal quotation marks omitted.) Oldani v. Oldani, 132 Conn.App. 609, 625-26, 34 A.3d 407 (2011), abrogated in part on other grounds by Brody v. Brody, supra, 315 Conn. at 316. " [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, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995). " [It] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn.App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006).
The court finds that the defendant has not met her burden of proving by clear and convincing evidence that the plaintiff is in wilful violation of a clear and unambiguous court order. Although the defendant has established that the plaintiff had notice of the orders set forth in paragraphs 6.2 and 9.2 of the February 2015 separation agreement, and that the orders are clear and unambiguous, she has not shown that the plaintiff wilfully failed to comply with such orders when he failed to reimburse her for his share of some of the minor children's school-related and extracurricular fees and expenses and failed to pay or advance his share of certain of their medical, dental, and orthodontia fees and expenses.
As discussed above, not all of the fees and expenses for which the defendant seeks reimbursement are within the scope of the extracurricular activities defined in paragraph 6.2. In addition, the court found that the plaintiff reasonably withheld his consent to Jack's orthodontia treatment because he could not afford the expense. The defendant also did not notify the plaintiff of some of the fees and expenses that she contends he is obligated to pay until the night before the last court date; therefore, the plaintiff has not had the opportunity to pay or refuse to pay the amounts requested. Accordingly, the court declines to find the plaintiff in contempt.
Although the court is not holding the plaintiff in contempt, the court finds that the plaintiff owes the defendant $1,311.80--less the cost of the coach's gift, the director's gift, and Isabelle's special food--pursuant to paragraphs 6.2 and 9.2 of the February 2015 separation agreement. The defendant shall provide the plaintiff with a revised list of expenses--eliminating the coach's gift, the director's gift, and the food from the total due--within ten days of the date of this memorandum of decision. The plaintiff shall reimburse the defendant within twenty days of his receipt of the revised list.
The court notes that paragraph 6.2 requires the party that did not pay the expenses to reimburse the paying party within five days of receiving proof of payment, but there is no similar provision in paragraph 9.2. Therefore, with respect to expenses within the scope of paragraph 9.2 that are incurred after the date of this memorandum of decision, the court hereby orders the non-paying party to reimburse the paying party for his or her share of the expenses within five days of receiving proof of payment, or advise the paying party in writing of the reason why timely payment will not be made.
II
In her second motion for contempt, postjudgment (#143.00), the defendant claims that the plaintiff wilfully violated the February 2015 separation agreement because he deducted the monthly payments for her car lease from the child support he paid to her between January and August 2016. The defendant contends that he is not in contempt because he was entitled to deduct such payments under the February 2015 separation agreement.
Under Article IV, paragraph 4.2(A) of the February 2015 separation agreement, the plaintiff was to be solely responsible for the lease payments on the 2014 Dodge Caravan driven by the defendant until he became employed and commenced paying unallocated alimony and child support pursuant to paragraph 5.1 of the February 2015 separation agreement. Subsection (A) of paragraph 4.2 further provided that " [u]pon commencement of such alimony payments, the Wife shall be solely responsible for the lease payments on said vehicle for the remainder of the lease term. The Husband shall make the lease payments and deduct the monthly lease amount from his monthly alimony payment to the Wife for the remainder of the lease term. However, should the Husband obtain employment and then be terminated from said employment within six (6) months, the Husband shall then again be responsible for the payment of the lease. Once the Husband again obtains employment the Wife shall then be responsible for the lease payments."
The plaintiff testified that he was officially hired by New York Life Insurance Company (New York Life) on February 17, 2016. He was in a New York Life training program prior to that time. He first received income from his employment with New York Life in March 2016. He was employed by New York Life on April 5, 2017, the last hearing date.
Pursuant to paragraph 4.2(A) of the February 2015 separation agreement, the plaintiff was solely responsible for the car lease payment for January 2016, because he was unemployed at that time. That payment, in the amount of $344.80, should not have been deducted from the child support that he paid to the defendant during that month. For the period February 17, 2016 through April 5, 2017, however, the plaintiff was employed; therefore, the defendant was responsible for the car lease payments for the remainder of the lease term, and the plaintiff was entitled to deduct those payments from his unallocated alimony and child support obligation to her.
With respect to the January 2016 car lease payment, the court finds that the defendant has satisfied her burden of proving, by clear and convincing evidence, the existence of a clear and unambiguous court order and the plaintiff's notice of and noncompliance with that order. The plaintiff was not entitled to deduct that payment from the child support that he paid to the defendant in January 2016. The defendant has not, however, shown that the plaintiff's failure to comply with paragraph 4.2(A) of the February 2015 separation agreement was wilful. Although the plaintiff was not officially employed by New York Life in January 2016, he was in the company's training program. " A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). Accordingly, the court will not find the plaintiff in contempt.
The court finds that the plaintiff owes the defendant the sum of $344.80, representing the January 2016 car lease payment that he deducted from the child support that he paid to her in January 2016. The plaintiff shall pay this amount to the defendant within twenty days of the date of this memorandum of decision.
III
In her third motion for contempt, postjudgment (#152.00), the defendant seeks to have the plaintiff held in contempt for failing to make any direct child support payments to her since August 2016. The plaintiff contends that he overpaid unallocated alimony and child support to the defendant between January and August 2016. He testified that he stopped paying unallocated alimony and child support to the defendant in September 2016 because she owed him $1,267.71 by that point. He also claims that he has indirectly paid unallocated alimony and child support to the defendant because he has made the monthly car lease payments through April 2017, when the lease was to expire, and he has paid for the defendant's automobile insurance as well.
Paragraph 4.2(C) of the February 2015 separation agreement provides that the defendant was to be solely responsible for the cost of the insurance on the 2014 Dodge Caravan, commencing on the first day of the first month following the entry of the dissolution judgment. Subsection (C) further provided that " [t]he Husband shall pay for such insurance on his policy and shall be reimbursed by the Wife for the cost of same on a monthly basis, within five (5) days of her being presented with proof of payment by the Husband, so long as he is in compliance with his responsibilities for child support or unallocated alimony and child support."
Article V, paragraph 5.1(A) of the February 2015 separation agreement provides that " [u]pon the Husband obtaining employment, he shall pay to the Wife fifty (50%) percent of his gross income, from whatever source derived, as unallocated alimony and child support, during his lifetime, until her death, remarriage or a period of nine and one-half (9 1/2) years from the date the Husband commences employment subsequent to the dissolution of the parties' marriage, whichever event shall first occur." Pursuant to subsebtion (C) of paragraph 5.1, " [a]ll payments made pursuant to paragraph 5.1 shall be made to the Wife within five (5) days of the Husband's receipt of said income from whatever source derived."
Under Article VI, paragraph 6.1(A) of the February 2015 separation agreement, " [u]ntil such time as the Husband obtains employment, he shall, during his lifetime pay the Wife child support in the amount of $400.00 per week, which figure represents a deviation from the Connecticut Child Support Guidelines based on the Husband's earning capacity." Subparagraph (B) of paragraph 6.1 provides that " [u]pon the Husband obtaining employment, he shall pay unallocated alimony and child support to the Wife pursuant to paragraph 5.1, above. Should the Husband's unallocated alimony and child support obligation terminate for any reason during the minority of the parties' children, the Husband shall then pay to the Wife child support in accordance with the Connecticut Child Support Guidelines retroactive to the date of the termination of alimony."
The plaintiff paid $400 per week to the defendant in January 2016 as child support pursuant to paragraph 6.1(A). Although he became employed as of February 17, 2016, he continued to pay the defendant $400 per week in child support between February 2016 and August 2016, rather than paying her 50 percent of his gross income as unallocated alimony and child support within five days of his receipt of such income, as required by paragraph 5.1(A) and (C).
On October 4, 2016, the plaintiff advised the defendant that he had earned a total income of $17,558.85 since February 17, 2016, from which he owed her $8,779.43 under paragraph 5.1(A). He stated that he had paid her a total of $12,000 in fifteen payments of $800. According to the plaintiff, the defendant owed him $3,220.37 as of the end of September 2016. The plaintiff testified that, after consulting with his current attorney, he realized that he had not been paying unallocated alimony and child support to the defendant in accordance with the provisions of paragraph 5.1(A), and he suspended his payments to her.
The plaintiff earned $23,184.91 from his employment with New York Life in 2016. He reported total income in 2016 of $24,480.04 in 2016. Pursuant to paragraph 5.1(A) of the February 2015 separation agreement, he owed the defendant 50 percent of his gross income, from whatever source derived--or $12,240.02--as unallocated alimony and child support for 2016. He was entitled to deduct the $344.80 monthly car lease payment from his unallocated alimony and child support obligation once he became employed in February 2016. According to the plaintiff, he paid the defendant a total of $16,876.23 in 2016--comprised of child support (for January 2016), unallocated alimony and child support for the period February through August 2016, and car-related expenses for the period January through December 2016--when he should have paid her $15,609.02, for a net overpayment of $1,267.11.
Pursuant to paragraph 4.2(C) of the February 2015 separation agreement, the plaintiff was entitled to be reimbursed by the defendant for the automobile insurance that he paid on her behalf on a monthly basis, upon proof of payment and as long as he was in compliance with his child support or unallocated alimony and child support obligations.
As of April 5, 2017, the plaintiff had not paid any unallocated alimony and child support to the defendant in 2017. The plaintiff testified that he had had no income in January or February 2017. He said that he had indirectly paid alimony to the defendant because he had paid for her car lease and her automobile insurance. In his view, the defendant still owed him money.
The car lease expired in April 2017.
The flaw in the plaintiff's argument is that he presumes, without more, that he has the right to set off the amount that he overpaid to the defendant against the payments of unallocated alimony and child support that he is required to make to her pursuant to Article V of the February 2015 separation agreement. In Lynch v. Lynch, 153 Conn.App. 208, 100 A.3d 968 (2014), cert. denied, 315 Conn. 923, 108 A.3d 1124, cert. denied, 136 S.Ct. 68 (Mem.), 193 L.Ed.2d 66 (2015), our Appellate Court rejected the plaintiff's argument that he was entitled to offset his accrued and unpaid support obligations against support that he had overpaid. As the court explained, " [r]etroactive modifications of support orders are ordinarily impermissible . . . With the exception of the period following service of a motion for modification, [n]o order for periodic payment of permanent alimony or support may be subject to retroactive modification . . . The power of the trial court to modify orders of support and alimony is . . . a creature of statute . . . Nothing in our statute regarding modification of alimony and support can be construed as authorizing retroactive modification. Such a construction has been expressly disavowed by our Supreme Court . . . Simply stated, alimony already accrued may not be modified . If the court had denied the motions for contempt on the ground that the plaintiff could offset the past due amounts that he owed by the amounts that he overpaid, it would have subjected the operative court orders to retroactive modification in violation of § 46b-86(a) and [ McRae v. McRae, 139 Conn.App. 75, 86, 54 A.3d 1049 (2012)]." (Citations omitted; footnote omitted; emphasis in original; internal quotation marks omitted.) Lynch v. Lynch, supra, 153 Conn.App. at 239. The court noted that its prior ruling in Tow v. Tow, 142 Conn.App. 45, 48, 64 A.3d 128 (2013), was distinguishable. " This court held in Tow that the trial court properly denied the plaintiff wife's motion for contempt alleging nonpayment of alimony and child support where, during the period of time covered by the motion, the plaintiff had access to a joint checking account into which the defendant husband deposited an amount that was 'well in excess' of the defendant's court-ordered support obligations . . . In the present matter, there is no temporal overlap between the plaintiff's overpayments and his noncompliance with his court-ordered support obligations." Id. at 239, n.19. See also Eldridge v. Eldridge, supra, 244 Conn. at 539 (alimony payor held in contempt for engaging in " self-help" rather than seeking modification of existing alimony order, where he applied credits he believed he was owed against amounts due under order). In Eldridge, our Supreme Court held that the contempt finding was not an abuse of discretion, rejecting specifically plaintiff's claim that his belief that he was entitled to an offset necessarily precluded a finding of wilfulness. Id. at 528-29.
The court finds that the defendant has established, by clear and convincing evidence, the existence of clear and unambiguous court orders and the plaintiff's notice of such orders. Before holding the plaintiff in contempt, however, the court must also find, by clear and convincing evidence, that the plaintiff wilfully violated these orders, irrespective of his belief that he had a right to set off the amounts that he owed the defendant for unallocated alimony and child support against the amounts that he had overpaid her.
According to the decision of our Appellate Court in Lynch, supra, this court would improperly subject the existing court orders regarding unallocated alimony and child support to retroactive modification if it denied the defendant's motion for contempt on the ground that the plaintiff could claim an offset of the amounts that he overpaid against the unallocated alimony and child support due to the defendant, unless it found that the payments were temporally related as in Tow, supra . Having analyzed the plaintiff's monthly gross income, the amounts that he was required to pay to the defendant pursuant to paragraph 5.1(A), the amounts that he actually paid to the defendant each month, and the car-related expenses that he covered on her behalf as well, the court finds such a temporal relationship here. In some months, the plaintiff paid less than he was obligated to pay under paragraph 5.1(A); in other months, he made up the deficit and paid the defendant more than was required. Going forward, the plaintiff remains obligated to pay 50 percent of his gross income to the defendant as unallocated alimony and child support for the balance of the nine and one-half-year term, unless the award is terminated earlier under the provisions of paragraph 5.1(A).
In Eldridge, supra, our Supreme Court held that " [w]hether to find a party in contempt is ultimately a matter within the trial court's discretion. The trial court could have exercised its discretion so as not to find the plaintiff in contempt. The fact that the plaintiff exercised self-help when he was not entitled to do so, however, by disobeying the court's order without first seeking a modification was a sufficient basis for the trial court's contrary exercise of discretion. The court was entitled to determine that to exonerate the plaintiff would be an undue inducement to litigants' exercise of self-help." (Footnote omitted; emphasis in original.) Eldridge v. Eldridge, supra, 244 Conn. at 532. This is not a case where the plaintiff has improperly exercised self-help without seeking relief from the court; thus, a finding that the plaintiff did not wilfully violate the existing orders is not likely to induce other litigants to do so.
Accordingly, the court finds that the plaintiff is not in contempt for failing to pay unallocated alimony and child support to the defendant pursuant to paragraph 5.1(A) of the February 2015 separation agreement. To avoid any question or concern in the future regarding the amount of unallocated alimony and child support that the plaintiff is obligated to pay to the defendant, the plaintiff shall deliver the computation and supporting income records required under paragraph 5.2 of the February 2015 separation agreement to the defendant no later than ten days after the end of each calendar quarter. For the quarter ending on September 30, 2017, the plaintiff shall deliver such documents on or before October 10, 2017.
IV
In her motion for modification, postjudgment (#144.00), the defendant seeks to have the existing court orders regarding unallocated alimony and child support modified because she has experienced increased financial hardship since the dissolution judgment was entered in February 2015. Her counsel explained at the hearing on April 5, 2017 that the defendant, who had filed the motion for modification, postjudgment, while she was representing herself, was actually asking the court to clarify rather than modify the terms of the February 2015 separation agreement. Specifically, the defendant asks the court to find that the plaintiff's unallocated alimony and child support obligation under the February 2015 separation agreement is a minimum of $400 per week.
The defendant contends that, although a $400 per week minimum unallocated alimony and child support obligation is not expressly provided in the February 2015 separation agreement, it is implicit in the parties' agreement. Otherwise, according to the defendant, she and the children are effectively worse off now that the plaintiff has a job than they were when he was unemployed. In response, the plaintiff denies that he agreed that he would always pay a minimum of $400 per week as unallocated alimony and child support. He argues that the orders set forth in Articles V and VI of the February 2015 separation agreement are clear and unambiguous, and there is no implied $400 per week minimum unallocated alimony and child support obligation in the agreement. The court agrees.
" 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." (Citation omitted.) Isham v. Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009). When construing a contract, the court seeks 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." (Internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999). " When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract." (Citation omitted.) Poole v. Waterbury, 266 Conn. 68, 89, 831 A.2d 211 (2003). " When the language is clear and unambiguous, however, the contract must be given effect according to its terms . . ." Isham v. Isham, supra, 292 Conn. at 181.
Paragraph 5.1(A) of the February 2015 separation agreement provides that " [u]pon the Husband obtaining employment, he shall pay to the Wife fifty (50%) percent of his gross income, from whatever source derived, as unallocated alimony and child support, during his lifetime, until her death, remarriage or a period of nine and one-half (9 1/2) years from the date the Husband commences employment subsequent to the dissolution of the parties' marriage, whichever event shall first occur." The court finds that this language is clear and unambiguous, and, therefore, it must be given effect according to its terms. There is no implied $400 per week minimum unallocated alimony and child support award in the February 2015 separation agreement. Accordingly, the defendant's motion for modification, postjudgment, is denied.
V
The defendant seeks an award of attorneys fees pursuant to paragraph 11.3 of the February 2015 separation agreement, which provides that " [i]n the event that it shall be determined by a court of competent jurisdiction that either party shall have breached any of the provisions of this Agreement or of any court decree incorporating by reference or otherwise this Agreement or portions hereof and regardless of whether the party is adjudicated in contempt, the offending party shall pay to the other party reasonable attorneys fees, court costs and other expenses incurred in the enforcement of the provisions of this Agreement and/or judgment or decree incorporating any or all of the provisions hereof." In view of the rulings set forth above, the court finds that an award of attorneys fees to the defendant is not appropriate here. Each party shall pay his or her own attorneys fees and expenses.
VI
The court has fully considered the applicable statutes, the relevant case law, the evidence, the demeanor and the credibility of the parties, and the contents of the court file, including the February 2015 separation agreement, incorporated by reference in the dissolution judgment, in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.
1. The defendant's motion for contempt, postjudgment (#141.00) is hereby DENIED. It is further ORDERED as follows:
a. The defendant shall provide the plaintiff with a revised list of expenses--eliminating the coach's gift, the director's gift, and the food from the total due--within ten days of the date of this memorandum of decision. The plaintiff shall reimburse the defendant within twenty days of his receipt of the revised list.
b. With respect to expenses within the scope of paragraph 9.2 of the February 2015 separation agreement that are incurred after the date of this memorandum of decision, the non-paying party shall reimburse the paying party for his or her share of the expenses within five days of receiving proof of payment, or advise the paying party in writing of the reason why timely payment will not be made.
2. The defendant's second motion for contempt, postjudgment (#143.00) is hereby DENIED. It is further ORDERED that the plaintiff shall pay the sum of $344.80, representing the January 2016 car lease payment, to the defendant within twenty days of the date of this memorandum of decision.
3. The defendant's third motion for contempt, postjudgment (#152.00) is hereby DENIED. It is further ORDERED that the plaintiff shall deliver the computation and supporting income records required under paragraph 5.2 of the February 2015 separation agreement to the defendant no later than ten days after the end of each calendar quarter. For the quarter ending on September 30, 2017, the plaintiff shall deliver such documents on or before October 10, 2017.
4. The defendant's motion for modification, postjudgment (#144.00) is hereby DENIED.
5. The defendant's application for attorneys fees pursuant to paragraph 11.3 of the February 2015 separation agreement is hereby DENIED.