Opinion
No. FBT FA 91 0281883
October 16, 2008
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by this court (Petroni, J.) on January 14, 1994. The parties entered into a written stipulation (herein, agreement), which was incorporated into the judgment along with certain additional terms recited on the record which were also incorporated into the judgment by agreement of the parties. The parties have twin daughters, issue of the marriage, born on March 31, 1987. The issues presented in plaintiff's motion for contempt, dated May 22, 2007, involve the defendant's liability for past due child support, notwithstanding an alleged oral agreement to modify the terms of the agreement. The defendant claims that the plaintiff's attempt to enforce the support provisions is barred by the defenses of equitable estoppel, laches and waiver. The defendant further claims that the defendant should be awarded damages for abuse of process by serving the instant motion for contempt, common-law fraud and breach of contract.
The agreement of the parties dated January 14, 1994 provides that the defendant would pay child support in the amount of $1,250 per child per month. The child support was to be increased to $1,750 per month per child at such time as the wife's $100,000 lump sum alimony had been fully satisfied or at such time as the husband was held in contempt with respect to any portion of said lump sum alimony payment. The agreement also provided that the plaintiff would get the defendant's consent if the children went to private school, which consent would not be unreasonably withheld. No modification or waiver of any terms of the agreement was to be valid unless the same was in writing and executed with the same formality as the agreement. The agreement was signed by the parties, witnessed and acknowledged. The judgment also provided that, if a court finds a party in contempt or a party has made a motion under Article VII which is not granted by the court, the non-prevailing party will pay the other parties' reasonable attorneys fees.
In 2006, the parties signed an Amendment to Stipulation to Judgment Dated January 14, 1994 (Plaintiff's exhibit 2; herein amendment) which increased the child support to $6,500 per month from November 1996 through July 1998. The child support was decreased to $6,000 per month for the period of August 1998 through September 1999. The child support was then set at $3,500 per month. The amendment reduced the balance owing on the husband's lump sum alimony to zero and allowed the plaintiff to take both children as dependents for tax purposes. The amendment was signed by both parties. It was not witnessed or acknowledged. Despite the defendant's request to have the amendment approved as an order of the court as soon as possible and to make it retroactive to November 1, 1996, no such action was taken. The defendant never paid the full $100,000 lump sum alimony due under the agreement, and no contempt motion was ever filed regarding the nonpayment. The plaintiff testified that she received $40,000. The defendant testified that he paid $60,000. The plaintiff is not making any claim for the unpaid balance.
The agreement provided that the lump sum alimony would be "nonmodifiable in all respects."
In September or October of 1998, the parties had further discussions regarding child support. Their daughters were to attend public school in Katonah, New York. The girls were in a special education program. The parties agreed that their daughters should attend private school. The plaintiff testified that the parties reached an oral agreement. The plaintiff claims that the oral agreement between the parties was that she would forego child support and the defendant would pay for private school and college for the girls. The defendant did in fact pay for the tuition at Dwight School in Manhattan and Hewitt School in Manhattan. He also paid for room, board and tuition at Suffield Academy in Suffield, Connecticut and for room, board and tuition at Northfield Mount Hermon in Northfield, Massachusetts until the girls graduated from high school in 2006. In 2006, both daughters were accepted into college. One child is attending Cornell University. The defendant has not paid any money towards this child's college costs. The other daughter attends Colorado College. The defendant signed a student loan to pay for the first year's costs. He has made no further payments. When the defendant failed to pay for the college costs for the parties' children, the plaintiff filed a motion to have the defendant held in contempt. The defendant claims that he never agreed to pay for college. He testified that he only agreed to pay for private school though high school graduation and never agreed to pay for college.
The plaintiff claims that she is owed $315,000 in unpaid child support. This is based on an obligation by the defendant of $3,500 per month from October 1998 through March of 2006. The defendant originally stipulated that $315,000 would be the amount owing, if the agreement was not modified by the oral agreement. The defendant later backed away from the stipulation, claiming that $225,000 would be the correct amount owing, if the agreement was not modified by the amendment or the oral agreement. The defendant provided evidence that he paid $478,728.56 for private school room, board and tuition for his daughters.
The initial question presented is whether an oral, out of court modification of the court order is effective. The provisions of a separation agreement become an order of the court when incorporated into the dissolution judgment. Decrees in a dissolution action cannot be modified by acts of the parties without further decree or order by the court. Grobstein v. Grobstein, 14 Conn.Sup. 378, 379 (1946). Thus, although the provision of the separation agreement could be modified by order of the court pursuant to a written agreement of the parties, see Nelson v. Nelson, 13 Conn.App. 355, 364-65, 536 A.2d 985 (1988), the oral agreement of the parties was ineffective to modify the separation agreement incorporated in the decree of dissolution. Albrecht v. Albrecht, 19 Conn.App. 146, 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Simms v. Simms, 89 Conn.App. 158, 162 (2005). Thus, even if the parties had agreed that the defendant would not be obligated to comply with the support order, that agreement would not be effective to modify the defendant's obligation. Ford v. Ford, 72 Conn.App. 137, 141, 804 A.2d 215 (2002). Therefore, it is concluded that an oral agreement between the parties would be ineffective to modify the agreement which was incorporated into the decree of dissolution.
The court next considers the special defenses raised by the defendant. As our Appellate Court recently noted, "the defenses of laches, equitable estoppel and waiver regularly are raised by parties . . . contesting the recoupment of alimony and support arrearages." Fromm v. Fromm, 108 Conn.App. 376, 384 (2008). "Waiver is the intentional abandonment of a known right . . . Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding . . . Intention to relinquish must appear, but acts and conduct inconsistent with intention to [relinquish] . . . are sufficient." Southbridge Assoc. v. Garofalo, 53 Conn.App. 11, 20 (1999). "Waiver need not be express, but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted). Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251-52, 618 A.2d 506 (1992). The legal doctrines of laches and equitable estoppel are related concepts under which a court will not enforce a legal right under certain circumstances. Both doctrines require some sort of prejudice to the party asserting the doctrine, either because of inexcusable delay in asserting a claim or defense, or because a party has changed its position "for the worse" in good reliance on conduct or statements of another. "Laches consists of two elements. First, there must have been a delay that was inexcusable, and second, that delay must have prejudiced the defendant." Emerick v. Emerick, 28 Conn.App. 794, 803-04, 613 A.2d 1351 (1992). "The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question." Bozzi v. Bozzi, 177 Conn. 232, 413 A.2d 834 (1979). Equitable estoppel, similarly,
is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse . . . Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done.
(Internal citations and quotation marks omitted.) Emerick v. Emerick, supra, 28 Conn.App. 802.
On the defense of laches, there is no doubt but that there has been a delay between the defendant first breaching his court-ordered support obligation and the plaintiff bringing this contempt action. The defense of laches does not apply, however, "unless there is an unreasonable, inexcusable, and prejudic[ial] delay in bringing suit." (Internal quotation marks omitted.) Dickinson v. Mullaney, 284 Conn. 673, 679 (2007). The court finds the testimony of the plaintiff credible. Her delay in bringing the instant motion was occasioned by her belief that the defendant had agreed to pay for college. When the plaintiff learned that the defendant would not pay for college, she filed the motion for contempt.
The defense of equitable estoppel requires that a party take some action or change its position in good faith reliance "for the worse" on the words or deeds of another. The agreement of the parties contemplated that the party's minor children would attend private school. In fact, the consent of the defendant could not be unreasonably withheld. It is quite conceivable that a court would have ordered the defendant to pay for all or part of the private schooling for his daughters in addition to paying child support. Therefore, the court can not make the requisite finding that the defendant's position changed for the worse when he agreed to pay for private school.
On the issue of waiver, the court finds that any such waiver of the plaintiff was conditioned on the defendant paying for college in addition to private school. Since the plaintiff has refused and neglected to pay for college, the defense of waiver fails.
The court has considered the defendant's claims of abuse of process, breach of contract and fraud.
"An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. Varga v. Pareles, [ 137 Conn. 663, 667, 81 A.2d 112 (1951)]; Schaefer v. O.K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . Comment b to § 682 explains that the addition of primarily is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. See also 1 F. Harper, F. James O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser W. Keeton, Torts (5th Ed. 1984) § 121." (Emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).
Suffield Development Asso. v. National Loan Investors, 260 Conn. 766, 772 (2002) 802 A.2d 44.
Because the gravamen of the action for abuse of process is the use of "a legal process . . . against another primarily to accomplish a purpose for which it is not designed," 3 Restatement (Second), Torts § 682 (1977); this court must examine the purpose for which the process at issue in this case, namely a motion for contempt to collect child support, is designed. Essentially, the purpose of a motion for contempt is to provide a means for a party to recover unpaid child support, the liability for, and amount of which, has to determined by a court. Accordingly, the defendant's claim for abuse of process fails.
"`Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed." Alexander v. Church, 53 Conn. 561, 562, 4 A. 103 (1886), quoting T. Cooley, Torts p. 474. The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985); Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811 (1981). Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991). The appropriate standard of proof for the party who seeks to prevail in a civil fraud action is clear and convincing evidence. Friezo v. Friezo, 281 Conn. 166, 196, 914 A.2d 533 (2007). This court cannot conclude that the plaintiff committed fraud when she relied on the defendant's claim that he would pay for private schooling and college for the parties' daughters. In fact, the court readily concludes that the plaintiff relied on the defendant's claims that he would pay for college in addition to private school. Therefore the defendant's fraud claim is denied.
The court also finds that the evidence does not support a claim for breach of contract. The court finds testimony of the plaintiff to be credible as to the contents of the oral agreement of the parties. The court cannot find that the plaintiff breached the oral agreement. In addition, the court cannot find that the plaintiff was unjustly enriched. "A right of recovery under the doctrine of unjust enrichment is essentially equitable; its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . ." James v. Hennessey, 105 Conn.App. 1, 4 937 A.2d 66 (2007). The fact that the defendant paid for private schooling for his daughters does not establish a claim for unjust enrichment. The defendant argues that it would be highly likely that the plaintiff would be required to contribute to the children's private school education. As stated above, the court finds that it would be quite conceivable that the defendant would be required to pay for at least a portion of the private schooling in addition to his child support obligation. As a result, the defendant's claim for breach of contract is also denied.
The court next must determine what amount is due the plaintiff from the defendant. The court finds that the amendment was not executed with the same formality as the agreement. Accordingly, it is not valid to modify the terms of the agreement. Under the terms of the agreement the defendant owes the plaintiff $225,000.
The plaintiff seeks interest in accordance with Conn. Gen. Stat. § 37-3a. Our appellate court recently discussed this issue at length.
General Statutes § 37-3a(a) provides in relevant part: "[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . ." It is not in dispute that such an award of interest may be made in marital dissolution actions. See, e.g., Crowley v. Crowley, 46 Conn.App. 87, 97, 699 A.2d 1029 (1997). "We have construed the statute to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances . . . The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court . . . We have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was wrongful." (Internal quotation marks omitted.) McCullough v. Waterside Associates, 102 Conn.App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).
"Before awarding interest [under § 37-3a], the trial court must ascertain whether the [party against whom interest is sought] has wrongfully detained money damages due the [aggrieved party] . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the [aggrieved party] . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . .
CT Page 16506
"A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated . . . Factual findings, such as those determinations, are reviewed under the clearly erroneous standard of review." (Citations omitted; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 31, 830 A.2d 240 (2003).
The determination of whether a retention of payment was wrongful is inherently fact bound, and reviewing courts permit lower courts to evaluate the unique facts of each case in exercising their discretion to award or to disallow interest under § 37-3a. See Maloney v. PCRE, LLC, 68 Conn.App. 727, 756, 793 A.2d 1118 (2002). This court has observed that a party's burden of demonstrating a wrongful detention of payment "requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful." Id. "Although bad faith is one factor that the court may look at when deciding whether to award interest under § 37-3a, we note that, in the context of the statute, `wrongful' is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so." Ferrato v. Webster Bank, 67 Conn.App. 588, 596, 789 A.2d 472, cert. denied, 259 Conn. 930, 793 A.2d 1084 (2002).
Sosin v. Sosin, 109 Conn.App. 691 (2008). After careful consideration, this court declines to award interest to the amount owing the plaintiff. The court cannot make the requisite factual finding that the withholding was wrongful.
The plaintiff is also seeking attorney fees. Our law for awarding attorneys fees in contempt proceedings is clear. "General Statutes § 46b-87 provides that the court may award attorneys fees to the prevailing party in a contempt proceeding. The award of attorneys fees in contempt proceedings is within the discretion of the court." Esposito v. Esposito, 71 Conn.App. 744, 748-50, 804 A.2d 846 (2002). The hearing on plaintiff's motion for contempt took one day. The plaintiff conducted discovery. The court awards attorney fees in the amount of $25,000.
Accordingly, the defendant is ordered to pay the plaintiff the amount of $225,000 in unpaid child support and attorney fees of $25,000, for a total of $250,000 within thirty days.