Opinion
No. FA-01-0727085
June 16, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S POSTJUDGMENT MOTION FOR EDUCATIONAL SUPPORT ORDER (Motion No. 159)
Procedural History of the Case
The parties' 19-year marriage was dissolved in this court on October 21, 2002 and the parties' Stipulation for Judgment of the same date was incorporated into the judgment. (No. 126.) The parties had two children, issue of their marriage: John, whose birth date is August 31, 1984, and Shaunda, whose birth date is July 10, 1986.
In January 2004, the defendant wife filed a motion for clarification of the dissolution orders as to retirement benefits (No. 127) and the plaintiff filed an objection thereto. (No. 128.) After a hearing and extensive briefing on the matter, the trial court rendered a decision in December 2006, finding that the pension provision was based on ambiguous or erroneous information, and granting the motion for clarification. (No. 135.10.) In December 2006, plaintiff sought articulation of this order (Nos. 138 and 140.)
In October 2006, the defendant filed a motion to open the judgment (No. 133). Plaintiff moved to dismiss that motion. (No. 136.) After, an extensive hearing, on October 18, 2007, the trial court granted the motion to open based on mutual mistake and further ordered that plaintiff pay to the defendant half of his pension and accrued benefits for the period of time between the date of the dissolution and the date of his retirement. (No. 148.10.) The court further ordered that, if the parties were not able to agree on a repayment plan, a hearing would be scheduled on that issue. (No. 148.10.)
The plaintiff appealed this judgment, and in December 2008, the Appellate Court affirmed the judgment of the trial court. ( Jones v. Jones, 111 Conn.App. 724.) In January 2009, the defendant asked the court to schedule a hearing on the repayment plan issue. (No. 156.10.)
On February 27, 2009, the plaintiff filed a Motion to Modify Alimony (No. 158) and a Motion for an Educational Support Order (No. 159), the latter of which is the subject of this decision.
Educational Support Order
In his motion, the plaintiff asks this court to issue an order compelling the defendant to pay for one-half of the "out-of-pocket expenses" for the college education of the parties' daughter Shaunda, who is presently 22 years of age and who will attain the age of 23 on July 10, 2009. Plaintiff's calculation of those "expenses" is approximately $58,000.
The parties have stipulated that Shaunda attended North Carolina A T University for four years and graduated from that school in May 2008.
As to college expenses, the parties' divorce decree contains the following under Paragraph 11, entitled "SECURITIES":
Plaintiff shall maintain certain Savings Bonds purchased through his payroll deductions, which bonds presently value at approximately $40,000.00. Plaintiff shall use said bonds exclusively for providing college education for the Parties' children. Any of said bonds remaining after the youngest child attains the age 23 shall be evenly divided between the Parties.
Although there is no reference in the parties' judgment as to the reservation of the jurisdiction of the court to enter any other post-secondary educational support orders, plaintiff asserts that he is entitled to an educational support order under General Statutes § 46b-56c because that statute provides in pertinent part:
If no educational support order is entered at the time of entry of a decree of dissolution, legal separation or annulment, and the parents have a child who has not attained twenty-three years of age, the court shall inform the parents that no educational support order may be entered thereafter.
General Statutes § 46b-56c(b)(1)
The parties have stipulated, and the transcript of the proceedings at the time of the divorce reveals, that the trial court did not so advise the parties. Defendant contends, however, that the above-cited portion of Paragraph 11 of the parties' divorce decree constitutes an educational support order and that, therefore, no such advisement was necessary.
In pressing his motion, plaintiff relies on Robinson v. Robinson, 86 Conn.App. 719 (2004). Mr. and Mrs. Robinson were divorced on July 18, 2003, at which time both of their children were under 6 years of age. The parties' agreement, incorporated into the judgment, provided, under a section entitled "child support," not only specified amounts as to weekly support, daycare and private school tuition payments, but also that
the net value of each party's currently held stock options shall be used for the payment of college expenses for the minor children, should such options have any value at the time of college. Upon the exercise of the stock options by either party, notice shall be provide[d] to the other party and shall be placed in a fund earmarked for college (e.g., [pursuant to the Connecticut Higher Education Trust, § 529 of the Internal Revenue Code]).
Approximately two and one-half months after the dissolution judgment, Mrs. Robinson filed a "Motion for Clarification" because the parties disagreed that the above-cited provision of their divorce decree amounted to an educational support order pursuant to § 46b-56c. The trial court ruled that the agreement did not include an educational support order under the statute. In its decision on plaintiff's appeal of that ruling, the Appellate Court recognized the defendant's claims that there had been a "carefully crafted mosaic" arrived at by extensive negotiations and that each of the parties had been represented by "seasoned matrimonial attorneys." Even in light of this, the Appellate Court held that, when a trial court is presented an agreement that does not contain an educational support order pursuant to the statute, the trial court must advise the parties of the option provided by the statute. Because none was provided in the Robinson case, the Appellate Court reversed the trial court decision as to all financial orders and remanded the case on those issues.
One of the clear distinctions between Robinson and the case at hand is that, in the instant case, plaintiff is invoking the statute seven years after the parties' divorce; five years after the commencement of the college education for which plaintiff seeks reimbursement; and one year after that education has concluded. In Robinson, any educational support order would be prospective and not retroactive. This court cannot find any authority in General Statutes § 46b-56c or in Robinson which would allow the court to issue an order for payment retroactively for expenses previously incurred and paid by one of the parties in a situation such as exists in this matter.
In addition, unlike Robinson in which the parties, in mentioning college, were not certain that any stock options would have value at the time the children entered college so as to be a portion of the financing of that education, in the instant matter the parties explicitly stated that they anticipated that the bonds that husband held would not only cover the costs of college, but also that additional funds might remain after college expenses were paid and the remainder was to be given to the parties' children. This was clearly part of the universality of the parties' property settlement. It constituted the parties' agreement as to how their children's college education would be funded and constituted a post-educational support order.
Plaintiff is precluded from seeking any educational support order for the oldest of his two children — that would be barred under that portion of the statute that provides: "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." § 46b-56c(a). Plaintiff seeks reimbursement for only Shaunda, who is presently 22 years of age, and who will attain the age of 23 in just a few weeks.
A review of this portion of the statute, and other parts as described below, reveals the prospective nature of the directives of this legislation. Clearly the `age 23' provision applies to an order that has been entered by a court for a child who will be attending college, and prohibits the court from continuing financial support directives to a parent, even if the child is still engaged in undergraduate studies, once the child attains the age of twenty-three.
Other provisions of the statute also reveal the exclusively prospective nature of the statute's directives. Under § 46b-56c(c), the court must look to six factors, including the institution of higher education that the child "would attend." § 46b-56c(c)(6). The statute directs that both parents shall participate in, and agree upon, the school that the child "will attend." § 46b-56c(d). The order may be suspended after any academic period in which the child fails to maintain a good academic standing. § 46b-56c(e)(3) and (4). The statute addresses various means of paying, including directly to the school. § 46b-56c(g). This court cannot fathom any school which would permit attendance and graduation, without any payment, much less full payment, and only require payment a full year after graduation.
Plaintiff had numerous opportunities postjudgment to address the college education issue he now raises. Instead, he has chosen to address that issue at this time, one year after his daughter has graduated from college, only after it has been determined, by the trial court and affirmed by the Appellate Court, that he owes a significant sum of money to the defendant. This certainly constitutes a classic case of laches — an inexcusable delay which prejudices the defendant. Farmers Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350 (1990). Under the directives of the Robinson case invoked by the plaintiff, all financial orders of the divorce would now have to be retried, seven years after the divorce. The ability of defendant to accurately reconstruct these matters, and, more importantly, the agreement on which she has relied for these many years and on which she has, more likely than not, made many financial and other decisions, would be severely prejudicial to her. In addition, she is prejudiced in that she may not have records of her finances as they may be applicable nor to the contributions she has made to the education of the parties' daughter. Plaintiff attempts to minimize this prejudice by arguing that he will not open all financial matters, but simply take defendant's obligation as a credit to the amounts he presently owes the defendant. Equitable considerations do not look favorably upon such attempted legal gymnastics.
For all of the reasons set forth above, the plaintiff's motion is denied.
SO ORDERED.