Opinion
No. FA 00 0072180 S
October 2, 2007.
MEMORANDUM OF DECISION RE DEFENDANT'S AMENDED MOTION FOR CONTEMPT (#125)
The record reflects that the parties were divorced pursuant to a separation agreement dated January 18, 2001. Both parties were represented by counsel and there were numerous penned and initialed changes to the separation agreement suggesting that the details were negotiated and compromised through and including the moment of dissolution. Of critical importance is paragraph 14 of the separation agreement, agreed to the parties and made an order of the court which states: "This agreement is intended to and does constitute the entire understanding and agreement of the parties and cannot be changed orally. No waiver of any breach or default hereunder shall be deemed a waiver of any subsequent breach or default of the same or similar nature. The husband and wife shall be free jointly to rescind or otherwise modify this agreement in writing in whole or in part, and such rescission or modification shall be valid and binding as between the husband and wife." (Emphasis provided).
On June 1, 2007, the defendant wife, acting pro se, filed a motion for contempt alleging that the plaintiff husband had failed to pay the court-ordered alimony and child support.
On October 25, 2007 the parties appeared with counsel. Both parties testified and introduced evidence in support of their respective positions.
The court finds the following facts proven by a preponderance of the evidence:
1. On March 22, 2002 the plaintiff husband, acting pro se, filed a motion for modification requesting that his child support obligation decrease and the percentage of his unreimbursed medical and day care contributions decrease due to a change in his compensation.
2. Both parties filed pro se appearances, attended court, participated in a family relations mediation but left court without either entering into an agreement or arguing their case before the court. No court action was taken.
3. Thereafter, the parties entered into an out of court agreement dated May 20, 2002 entitled "addendum to separation agreement of January 18, 2001"(plaintiff's exhibit 1). In said addendum the parties agreed that the plaintiff's child support obligation would be reduced from $323 per week to $262 per week, that unreimbursed medical expenses, work-related day care expenses, and extracurricular and summer camp expenses would be shared equally and that if the husband were to receive a bonus from his employer, he would pay to the wife 24% of that amount.
4. From May 20, 2002 until sometime in the spring of 2004, the parties operated under this agreement. In the spring of 2004, at the defendant wife's insistence and with the threat of bringing him back to court, the parties orally renegotiated their agreement and the husband increased his child support payments to $285 per week which he has been paying through and including the present time.
5. In October 2002 the husband received a bonus and paid his wife 24% of that bonus or $1,032 as agreed in said addendum.
6. In the spring of 2003, the wife began cohabiting with her boyfriend. The plaintiff requested that the defendant agree to terminate the alimony payments but she refused. The husband unilaterally terminated his alimony payments. There are 37 unpaid weeks at $72 per week or $2664 due and owing. Clearly, no written agreement terminating alimony was ever reached.
7. For five years, the defendant wife willingly accepted the terms and conditions of the addendum to the separation agreement. She testified unconvincing that she never filed a contempt because she was intimidated and felt threatened by her ex-husband and that she lacked the funds to hire a lawyer. The court finds this testimony not credible in view of the fact that she ultimately filed a pro se motion for contempt on June 1, 2007, was able to stand up to him when he attempted to negotiate the reduction of his child support in March 2002, was able to renegotiate an increase of the child support in 2004 and refused his request for a termination of his court-ordered alimony payments.
8. During the school year, the children attend after school day care so the parents can work. During the summer, the children attend all day camp so the parents can work.
9. The separation agreement calls for an equal sharing of "extracurricular activities, such as sports and summer camp" and a 66% share to him and a 34% share to her of "any day care expenses incurred by the wife so that she may work." The husband has attempted to consider summer camp as an extracurricular activity and not work-related day care.
10. The court finds the summer camp to be in the nature of work-related day care and not an extracurricular activity such as a sports camp.
11. No court ever modified the judgment entered into January 18, 2001.
12. The parties reasonably and in good faith believed that the agreement, approved by the court and incorporated into the judgment on January 18, 2001 permitted the parties to mutually modify, in writing, the terms of said judgment without court intervention.
13. In March 2006, the plaintiff husband received a bonus from his employer in the amount of $5,600 and neglected or failed to pay to the defendant wife 24% or $1,344 as called for in the addendum.
The questions presented are
1. Whether the parties can effectively modify the terms of the judgment pertaining to alimony and child support, which by its terms is modifiable by mutual consent of the parties, without a court-ordered modification;
2. Whether the wife is equitably estopped to deny the enforceability of the written agreement she made with the plaintiff subsequent to the divorce;
3. Whether the plaintiff is in contempt.
Connecticut General Statutes § 46b-86(a) governs modifications of alimony and child support so we begin with that statute for guidance.
. . . any final order for the periodic payment of periodic alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . . In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution . . . 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 pursuant to section 52-50.
The court in Lounds v. Lounds, 41 Conn.Sup. 100 (Freed, J., 1988) confronted a similar factual scenario wherein the parties attempted to modify an alimony and child support order by private agreement without obtaining court approval. The court held:
A support order can be modified only by the court. Bock v. Cavanaugh, 1 Conn.App. 138, 141, 468 A.2d 1242 (1984). The reason for this rule is apparent. The court is vested with the ultimate responsibility for determining and safeguarding the best interests of children. Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986). Although parties have a statutory right to enter into agreements affecting their children, a trial court has the power to reject or modify such agreements if it determines that such agreements are not equitable. Id., 65. It is the duty of the court to enter such orders as it believes to be in the best interests of the children, and it is a responsibility that cannot be delegated or abrogated by agreement of the parties. Id., 64-65. Additionally, Connecticut courts have long recognized the independent nature of a child's right to parental support. Burke v. Burke, 137 Conn. 74, 79, 75 A.2d 42 (1950). A husband and wife cannot make a contract with each other regarding the maintenance or custody of their child that the court is compelled to enforce. Guille v. Guille, 196 Conn. 260, 263-64, 492 A.2d 175 (1985). It is, therefore, the opinion of this court that, in accordance with General Statutes § 46b-86(a) and the pronouncement of the Connecticut Appellate Court in Brock v. Cavanaugh, supra, an order of support and an order of alimony can be modified only by the court. Therefore, the agreement of June 18, 1981, did not effect a modification of the outstanding support and alimony order of this court. Id. p. 105-06.
However, the circumstances in the Lownds, supra, case suggest that the "agreement" was entered into under duress.
The court in Burke v. Burke, 137 Conn. 74 (1950) held that "a husband and wife cannot make a contract with each other regarding the maintenance or custody of their child which the court is compelled to enforce, nor can the husband relieve himself of his primary liability to maintain his child by entering into a contract with someone else to do so. The welfare of the child is the primary consideration. The court may recognize the contract, but such contract will not be enforced longer than it appears to be for the best interests of the child, and parents entering into such a contract are presumed to do so in contemplation of their obligations under the law and the rights of the child." Id. p. 80. Guille v. Guille, 196 Conn. 260, 264 (1985).
There was no evidence that the children at issue suffered as a result of the financial agreement of their parents. Clearly, a court would not be bound to enforce an agreement between the parents which was not in the best interest of the children.
The court in Riscica v. Riscica, 101 Conn.App. 199 (2007) recently held: "In Connecticut, the general rule is that a court order must be followed until it has been modified or successfully challenged. Eldridge v. Eldridge, 944 Conn. 523, 530, 710 A.2d 757 (1998); Behrns v. Behrns, 80 Conn.App. 286, 289, 835 A.2d 68 (2003), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004). Our Supreme Court repeatedly has advised parties against engaging in `self-help' and has stressed that an `order of the court must be obeyed until it has been modified or successfully challenged.' . . . Sablosky v. Sablosky, [ 258 Conn. 713, 719, 784 A.2d 890 (2001)]; see also Eldridge v. Eldridge, supra, 528-32 (good faith belief that party was justified in suspending alimony payment did not preclude finding of contempt); Mulholland v. Mulholland, 299 Conn. 643, 648-49, 643 A.2d 246 (1994); Nunez v. Nunez, 85 Conn.App. 735, 739-40, 858 A2d 873 (2004)." Lawrence v. Lawrence, 92 Conn.App. 212, 215-16, 883 A.2d 1260 (2005). Id. p. 200-01.
In that case the court found that the parties had a vague conversation concerning the husband's inability to make present payments but the court did not find that there was any certain agreement to modify the existing court order or to waive any all of the wife's rights thereunder.
In the instant case, the parties negotiated and agreed at the time of their dissolution that they could modify the court order without court approval. The terms of this agreement were approved by a judge of the Superior Court who would have found it to be fair and equitable and incorporated its terms into the judgment. Thereafter, the parties entered into a written agreement modifying the divorce judgment and lived under that modified agreement for five years without event. In fact, the wife accepted the benefit of the bonus from the new agreement, a benefit not provided by the original judgment. The husband assumed that the new agreement was lawful and binding and in reliance thereof, did not return to court to have a formal modification.
The law encourages the private settlement of the financial affairs of litigants. Hayes v. Beresford, 184 Conn. 568 (1981). It is the favored public policy to encourage litigants to settle claims without recourse to the courts. "When a judgment incorporates a separation agreement in accordance with the stipulation of the parties, it is to be regarded and construed as a contract." Barnard v. Barnard, 214 Conn. 99, 109 (1990); Zivic v Zivic, 26 Conn.App. 5, 7 (1991).
The parties did not effectively modify their court judgment by their written agreement. Nonetheless, the defendant-wife is equitably estopped to deny the enforceability of the written agreement she made with the plaintiff husband subsequent to the divorce. "A claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Riscica v. Riscica, 101 Conn.App. 199, 205 (2007); Bozzi v. Bozzi, 177 Conn. 1232, 241 (1979).
The court finds the husband in contempt for his unilateral termination of alimony and his failure to pay $1,872 for child care and 24% of his 2006 bonus.
Wherefore, the court orders:
1. The husband shall pay to the wife the alimony arrearage in the amount of $2,656 less a $500 acknowledged loan or $2,156.
2. The husband shall pay to the wife the sum of $1,872 for child care.
3. In the husband shall pay to the wife 24% of his 2006 bonus.
4. The husband shall pay to the wife counsel fees in the amount of $2,500.
5. Said payments are to be made within 60 days.