Opinion
No. FA 99 0721406 S
March 16, 2009
MEMORANDUM OF DECISION
FACTS: The marriage of the parties was dissolved on January 12, 2000. The Judgment incorporated a separation agreement dated December 27, 1999.
On May 2, 2008 the plaintiff filed a Motion for Modification, Determination of Obligations and Other Orders. She claimed an arrearage in child support, requested an order of post-majority educational support, requested an award of attorneys fees and other relief. (#129)
The defendant filed a Motion to Deny Plaintiff's Motion for Modification, Determination of Obligations and other Orders in their entirety on July 2, 2008. (#131)
Plaintiff filed an amended Motion for Modification, Determination of Obligations and Other Orders on July 15, 2008. (#138)
On July 15 and 23, 2008 the court heard testimony and exhibits were introduced. The briefing schedule was modified and extended by Stipulation dated August 21, 2008 due to the plaintiff's request for a transcript. Plaintiff received the transcript on September 3, 2008.
The defendant filed a Motion for Nonsuit on October 10, 2008 alleging plaintiff failed to follow the briefing schedule established by the August 21, 2008 stipulation.
The plaintiff filed a Motion for an Additional Extension of Time on October 30, 2008.
The defendant filed his Post-trial Memorandum on October 27, 2008.
The defendant's Brief in Opposition to Plaintiff's Motion for Modification was filed on November 18, 2008.
The parties' Separation Agreement incorporated into the Judgment provides as follows:
CHILD SUPPORT: 1. Child Support Amount
MICHAEL shall pay to JEAN $261.00 per week as child support, as shown on the attached Child Support Guidelines Worksheet commencing the first Friday following the date of the divorce and continuing each week thereafter.
2. Payment of Additional Expenses
We agree that we shall equally share expenses for our children, such as music lessons, summer camps, allowances, special clothing, sports, school supplies, fees, etc. when we have mutually agreed that they are appropriate for the children . . . (emphasis added).
5. Modification of Child Support
We agree to exchange income tax returns on or before April 15 each year, beginning 2000 and will use those figures to re-calculate child support each year beginning 2000. If the resulting child support is more than 15% different from the existing child support amount, we will change the new amount.
6. Duration of Child Support and Related Obligations
All obligations for child support and child related expenses shall continue until each child dies, marries or reaches the age of 18 . . .
F. INCOME TAX
MICHAEL will claim both children as income tax dependency exemptions and child tax credit for the duration of child support. MICHAEL will reimburse JEAN the amount of the benefit that she would have derived from having one deduction on her tax return . . .
Evidence was entered on July 15th and 23rd, 2008, regarding the plaintiff's Motion for Modification. Pursuant to the testimony and exhibits, the parties' post-dissolution interactions contained a number of failures on both sides to abide by the terms of the judgment. The plaintiff testified that for the tax years 2000, 2001, and 2002, she provided the defendant with two sets of tax returns, an actual set containing no deductions for children and another, unfiled set specifying what the plaintiff would have paid had she claimed one child. Tr. 7-9. The plaintiff testified that per the agreement the defendant claimed both children as deductions on his returns, but the defendant failed to reimburse her for the additional tax burden for any of the three years. Tr. 8-9. The plaintiff testified that in 2003 to 2008, she claimed her daughter as a deduction on her returns each year and ceased providing the defendant with the two sets of returns. Tr. 9, 13-14, 18.
The defendant, in his testimony, confirmed the plaintiff's version of events with respect to the tax returns. Tr. 22. Specifically, the defendant stated that he did not reimburse the plaintiff for one dependancy deduction.
Because I've been left with so much debt following the marriage. She left me with about $5,000 in credit card debt and pretty much drained our savings account. I was angry so — . . . I felt some anger so in that regard I was trying to get back at her that way.
Tr. 22-23. In addition, the defendant asserted that commencing in 2001 he had incurred some additional expenses on behalf of their daughter Molly, a share of which the plaintiff failed to pay.
At that point I believe the — my daughter was getting braces, and initially we both made a down payment towards [sic] that and then following that I was making monthly payments which she no longer added to so I wound up paying about $2,200 that was left and she paid $390 so, again, I didn't pay her so it was kind of tit for tat.
Tr. 23. Regarding 2002, the third and final year in which the plaintiff provided the defendant with the two sets of returns, the defendant testified that he did not reimburse the plaintiff "because of payments I felt that I made that she didn't reimburse in regard to the orthodontist." Tr. 24. Addressing the parties' modification of the tax reimbursement scheme beginning 2003 without court sanction, the defendant testified "I pretty much had spanned that time [through 2002] as well so beyond that we decided to take one child apiece [sic] to get away from that whole idea of me giving her — reimbursing her for one child." Tr. 23. The defendant's statement confirmed the plaintiff's testimony that, beginning in 2003, the parties agreed that the plaintiff would claim their daughter as a tax deduction and neither would attempt to follow the original reimbursement scheme. Tr. 9, 18.
The plaintiff testified at the time of the dissolution, the parties had two minor children and that the order was for $261 per week. (Tr. At p. 7, line 17-22 "hereinafter T p. X line X to X." Although the agreement provided for an ". . . exchange [of] tax returns on or before April 15 each year, beginning 2000 . . . to recalculate child support each year beginning 2000 . . ." said recalculation occurred only once when Justin, the oldest child, reached 18 in October of 2002 (T. at p. 10, line 1-18.) The resulting support order of $140 per week remained until April 29, 2008 when Molly reached the age of 18. (T. at p. 11, line 2-5.) Since that time, no further adjustment has taken place. (T. at p. 26 line 26 and T. at p. 27, line 1.)
The defendant testified that child support payments were modified by mutual agreement in 2002 when their son, Justin, reached majority. Tr. 23-25. According to the defendant, he contacted the plaintiff sometime around their son's 18th birthday in October 2002 and proposed that the support figure be reduced by half until they could agree upon a different figure. Tr. 24. A few weeks later, the defendant testified that the plaintiff proposed a weekly payment of $140, and the defendant agreed. Tr. 24. No evidence was offered regarding the method used to calculate the $140 weekly payment. The defendant paid that amount each week until their daughter graduated high school in June 2008. Tr. 24.
The plaintiff did not dispute that the modification of child support was by mutual agreement. On cross examination, the plaintiff testified that she and the defendant had agreed to the lower weekly payment following their son's eighteenth birthday. Tr. 14. The plaintiff stated she could not recall which of them had proposed the $140 figure, but that in either case they had both agreed to the new amount. Tr. 14-16. Regarding other claims as part of her motion, the plaintiff testified that she had incurred a number of additional expenses on behalf of their daughter from 2006 to 2008 for which she had not received any financial assistance from the defendant. Tr. 11, 27. Additionally, the plaintiff testified that she had retained her attorney to bring the motion and had incurred legal fees as a result. Tr. 12-13. On cross examination, the plaintiff testified that she was unaware that the dissolution agreement required each parent to obtain the consent of the other before incurring additional expenses on behalf of the minor children. Tr. 16-17. The plaintiff admitted that, with respect to particular additional expenses, neither party had consulted with the other in advance.
Q [Attorney Stingle]: No, and I am talking about you're making a claim here for half the cost of an automobile —
A [Plaintiff]: Right.
Q: — for your daughter.
A: And I'm also making the point that I never consented to tennis or piano lessons so I guess that would be along the same vain [sic], but —
Q: Well, did you — did you reimburse him for those?
A: No, I didn't. Did he reimburse me for the automobile so she could go to work and get a job?
Q: No. I'm not suggesting that he did, but I'm asking you if you consulted with him before you purchased that car for her?
A: No, and he didn't consult with — with me before he purchased those tennis lessons either.
TR. 17. On re-cross examination, the plaintiff testified further about the additional expenses:
Q: With respect to the list of items that you listed that you want reimbursement for I mentioned specifically a car, but everything that's listed on there, there was no consultation between you and Mr. Zipkin about the cost of any of those things?
A: There was. I sent him a letter, actually.
Q: After the fact.
A: Oh, yes. Yes.
Q: After you spent the money you sent him a letter saying you wanted reimbursement.
A: Yes, ma'am.
TR. 20. The defendant did not claim to have reimbursed the plaintiff for the additional 2006 to 2008 expenses, but instead testified that he had incurred unreimbursed expenses as well, including college application fees, a "Jakito seminar" and automobile-related costs. Tr. 25-27.
II. Plaintiff's Claim for Relief.
The plaintiff has requested that the court award her:
1. Support arrearages in the amount of $13,128 computed by using the tax returns to figure child support guidelines amount minus the amount actually paid. Plaintiff also seeks non-payment of tax reimbursement for the years 2000-2002;
2. Arrearages for unreimbursed extracurricular expenses in the amount of $2,368 incurred during the years 2006-2008.
3. Arrearages for interest payments through July 15, 2008, in the amount of $5,241.60; and
4. Attorneys fees in the amount of $4,669.30.
The plaintiff's original motion also requested a determination of obligations for payment of college tuition for Molly Zipkin, but the plaintiff orally abandoned that claim at the hearing on July 15, 2008. Defendant's Br. 2.
III. Applicable Law. A. Determination/modification of child support totaling $13,128.00.
The defendant admitted he did not pay the support claimed by the plaintiff and did not dispute the amount of the arrearages. Instead, the defendant argues that the plaintiff's motion should be denied on several grounds: first, by operation of Connecticut General Statutes § 46b-86(a) preventing retroactive modification of support; second, by the related equitable defenses of estoppel, laches and waiver; and third, by the equitable doctrine of unclean hands. Defendant's Br.
2. Each of the defendant's arguments is addressed in turn.
1. Prohibition on retroactive modification: Connecticut General Statutes § 46b-86(a)
First, the defendant claims that the court is barred by operation of a statute that prohibits retroactive modification of alimony and support orders unless specific conditions are met. The relevant portion of the statute provides as follows:
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.
Connecticut General Statutes § 46b-86(a). Subsection (b), immediately following the above statutory text, provides an exception for retroactive modification of alimony prior to the entry of a motion for modification "upon a showing that the party receiving the periodic alimony is living with another person" such that a change in the circumstances of financial support renders the modification warranted. Connecticut General Statutes § 46b-86(b). No such exception to the prohibition on retroactive modification of support exists in § 46b-86.
The defendant asserts that an order for support payments can only be modified retroactive to the date of service of notice of a pending motion for modification and not before. Defendant's Br. 2-3. In Lucas v. Lucas, the Appellate court held that the term "pending" as used in § 46b-86(a) meant a motion for modification that was filed and served but remained undecided and, as such, courts may order modification with respect to any period during which there is such a motion reaching back to the date of service of notice. Lucas v. Lucas, 88 Conn.App. 246-47-48 (2005). See also Esposito v. Banning, 110 Conn.App. 479, 484 (2008) (a pending motion for modification of support provides the court the option of later modifying the order retroactively to the date the motion was served); Bartlett v. Bartlett, 220 Conn. 372, 384 (1991) ("if, on rehearing, the trial court should decide that [the plaintiff] is entitled to an increase in her award of periodic alimony, the court's order should be effective as of the date of service of notice of the motion upon the defendant so as to afford the plaintiff the benefit of the modification from the time when it was originally sought.") (citing Connecticut General Statutes § 46b-86(a)).
The Appellate Court's ruling in Diamond v. Diamond is instructive. In that case, the relevant motion for modification — there were several — was the one served on the defendant on September 20, 1992. Diamond v. Diamond, 32 Conn.App. 733, 738 (1993). In ruling on that motion, the trial court found that the defendant had not lived up to his support obligations due to a change of financial circumstances that occurred on August 1, 1991. The trial court ordered a modification of support retroactive to August 1, 1991, to force the defendant to pay additional support against the arrearage that had accrued. Id. At 738-39. The Appellate Court overturned the trial court's judgment, holding that the decision constituted a retroactive modification of a prior support order because the modification was applied to dates prior to September 20, 1992. See Id. at 740-42. Further, the Appellate Court deemed it irrelevant that the effect of the trial court's judgment was to increase, rather than decrease, the support order; it was still a retroactive modification in contravention of Connecticut General Statutes § 46b-86a. Id. At 742.
The present facts require a determination that a modification of support prior to May 5, 2008 — the date of service of the plaintiff's original motion for modification — would be retroactive and thus contrary to the Connecticut General Statutes § 46b-86. The only alternative to this interpretation is that, because the original dissolution agreement is self-executing in that it somehow serves automatically to require the support payments requested by the plaintiff, irrespective of the conduct or agreement of the parties.
If that is the case, the defendant is ultimately correct that prospective support modification would be moot because both children reached majority prior to the service of the plaintiff's motion for modification. See Defendant's Br. 3.
However, the court does not interpret the dissolution agreement as self-executing in this way. The agreement can be interpreted to indicate that the annual modification of the support payments would be calculated by the parties working together by reviewing their tax returns. (Dissolution Agreement D, 5. Modification of Child Support.) Even if that portion of the agreement is viewed as leaving no discretion to the parties, it does not unambiguously set out a specific amount or even the precise formula by which the defendant's support payments were to be calculated. See Eldridge v. Eldridge, 244 Conn. 523 (1998) (dissolution agreement that contains an ambiguous term cannot be self-executing); Behrns v. Behrns, 80 Conn.App. 286, 290-91 (2003) (same). In contrast, cases in which a dissolution provision has been held self-executing tend to involve date or event-certain provisions which terminate the alimony or support obligations entirely. See e.g., Krichko v. Krichko, 108 Conn.App. 644 (2008) (alimony payments terminated upon former wife's cohabitation with another male); Stein v. Stein, 49 Conn.App. 536 (1998) (alimony payments terminated upon former wife obtaining full-time employment).
Moreover, even though the dissolution agreement's support termination provision is arguably less ambiguous because it provides a date certain by which the obligations due each child terminate, the determination of any remaining support obligations is left entirely open to the parties. In fact it is clear to the court that the parties did not use the Child Support Guidelines to recompute child support after their son reached the age of majority. See Steben v. Steben, 2008 WL 4073035 (Conn.Super. 2008) [ 46 Conn. L. Rptr. 168] ("A careful reading of the applicable provisions in the separation agreement indicates that although child support for each child terminates upon their eighteenth birthday and completing of high school, it does not contain language specifying the amount of child support to be paid on behalf of the remaining child(ren). Therefore, as to the issue of child support the agreement is not automatic and self-executing"). The court's conclusions corroborated by the testimony of both parties that, following Justin Zipkin's birthday in October 2002, they recalculated the defendant's support obligations and mutually agreed to a reduction from $261 per week to $140 per week. Tr. 14, 24. This action was filed May 5, 2008, after the parties' youngest child reached the age of majority. The court cannot retroactively modify the child support and Plaintiff's motion is denied.
The Superior Court's decision in Steben is an unpublished opinion.
2. Equitable estoppel
Assuming arguendo that the agreement's provisions for modification of child support are self-executing and therefore not subject to the § 46b-86(a) prohibition on retroactivity, additional special defenses can be made in response to the plaintiff's motion. While the four defenses of equitable estoppel, laches, waiver and unclean hands are related, the application of each is sufficiently distinct as to merit independent consideration.
"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) (quoting Sablosky v. Sablosky, 72 Conn.App. 408, 414-15 (2002)).
The estoppel defense is only applicable to the present case through inference, as no testimony was elicited to determine whether the defendant relied to his detriment particularly because of any explicit or implicit communications from the plaintiff. The most favorable interpretation of the facts in support of a finding of estoppel, is that the defendant, in incurring a greater share of certain costs on behalf of Molly Zipkin followed by a reduction of support obligations and an agreement to allow the plaintiff to claim one tax deduction from 2003 onward, the defendant believed he was meeting all of his obligations by the implicit ratification of the plaintiff.
To that end, the court would be required to infer that the defendant incurred additional unilateral expenses on behalf of the younger child because he believed it constituted consideration to the plaintiff in exchange for, inter alia, a mutual agreement not to abide by the original tax reimbursement scheme. Tr. 17, 23-24. This is one plausible interpretation of the defendant's testimony: "I pretty much had spanned that time [through 2002] as well so beyond that we decided to take one child a piece [sic] to get away from that whole idea of me giving her — reimbursing her for one child." Tr. 23. The defendant's belief that these additional expenses were made in full satisfaction of his obligation to reimburse the plaintiff's tax burden from 2000-2002 could have been bolstered by her agreement to the reduction of support payments following their son Justin Zipkin's eighteenth birthday, which was apparently done without reference to the defendant's outstanding tax reimbursement obligations. Tr. 14, 24. Presumably, the defendant also relied on the effectiveness of the mutual agreement by pursuing neither judicial approval of the reduction nor a motion for determination of support for the plaintiff's failure to pay agreed additional expenses. Tr. 23.
The foregoing interpretation of the parties' conduct bears some consistency with other cases finding valid defenses of estoppel against support modification, at least insofar as the facts may support a finding that the defendant incurred additional child-related expenses in exchange for a reduction or elimination of support obligations. See. e.g., Kellogg v. Kellogg, 1991 WL 270343 (Conn.Super. 1991) [ 5 Conn. L. Rptr. 710] (estoppel defense established because defendant was told support obligations were reduced so long as child resided with him instead of plaintiff); O'Connor v. O'Connor, 1992 WL 157523 (Conn.Super. 1992) [ 6 Conn. L. Rptr. 575] (same). In contrast, the courts in Bozzi and Riscica found the estoppel defense inapplicable because the defendant had not relied on the plaintiff's temporary non-enforcement of the child support order, but rather had been told that the plaintiff expected eventual payment in full. Bozzi v. Bozzi, 177 Conn. 232, 239 (1979); Riscica, 101 Conn.App. at 206. While this interpretation supporting the estoppel defense is minimally plausible, no evidence exists on the record to support the contention that the plaintiff communicated to the defendant — either expressly or by silence — her intention that the defendant be misled to believe that his support obligations were satisfied, an essential element of the defense. See Riscica, 101 Conn.App. 206-07.
The Superior Courts' rulings in O'Connor and Kellogg are unpublished opinions.
3. Laches
"The defense of laches, if proven, bars a party from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the opposing party. First there must have been a delay that was inexcusable and second that the delay must have prejudiced the opposing party." Fromm v. Fromm, 108 Conn.App. 376, 385 (2008) (citations omitted). Though both estoppel and laches require the party asserting them to demonstrate prejudice, the former involves a communication that invokes reliance whereas the latter concerns an inexcusable lapse of a substantial period of time. The mere lapse of time, however, "does not constitute laches unless it results in prejudice to the defendant such that the defendant is led to change his position with respect to the matter in question." Brock v. Cavanaugh, 1 Conn.App. 138, 140 (1984) (citing Bozzi, 177 Conn. At 239).
There is no suggestion in the record or in the defendant's memorandum of opposition that he plaintiff's delay in filing the motion for modification in any way caused prejudice to the defendant. The plaintiff is correct that laches defenses have been rejected even when asserted in cases with far greater delays than the six- to eight-year period presently at issue. Pl's Br. 7-8; see Burrier v. Burrier, 59 Conn.App. 593, 596 (2000) (defense of laches against approximately 20-year delay invalidated upon failure to show prejudice to defendant); Brock v. Cavanaugh, 1 Conn.App. at 141 (defendant's lack of effort to locate plaintiff and their child indicated no prejudice incurred by plaintiff's eight-year delay). Typically, the defense of laches has been upheld in instances where the plaintiff's conduct prior to the motion for modification put the defendant at a material disadvantage and/or deprived the defendant of legal rights. See, e.g., Fromm, 108 Conn.App. at 386 (laches defense upheld because plaintiff's delay of more than ten years rendered defendant unable to meet his alimony and support obligations). While the plaintiff's failure in this case to file a motion for modification may, in retrospect, appear imprudent or even unreasonable, nothing in the record indicates the delay was either inexcusable or prejudiced the defendant.
4. Waiver
"Waiver is the intentional relinquishment of a known right." Lownds v. Lownds, 41 Conn.Supp. 100, 551 A.2d 775 (Conn.Super. 1988) (citing Olean v. Treglia, 190 Conn. 757, 773, 463 A.2d 242 (1983)). "In contrast to the doctrines of equitable estoppel and laches, waiver does not require a showing of prejudice or detriment on the part of the other party." Stranko v. Stranko, 2002 WL 450471 (Conn.Super. 2002).
The plaintiff's actions by virtue of the earlier child support modification can be viewed as impliedly waiving claims to support arrearage through her voluntary approval of a reduction in support payments subsequent to October 2002, arguably in consideration for which she was permitted to claim Molly Zipkin as a tax deduction from 2003 onward and to have the defendant continue to pay certain additional expenses unilaterally. Tr. 9, 18, 23. Further, the record establishes that while the plaintiff returned to court prior to the May 2008 motion for modification by filing a motion for contempt to enforce the dissolution agreement's visitation provisions.
The application of the waiver doctrine tracks several decisions interpreting post-dissolution agreements between the parties as, in effect, modifying the support or alimony obligations based upon mutual consent. See DiBiaso v. DiBiaso, 17 Conn.Sup, 483, 484 (Conn.Com.Pl. 1952) (plaintiff's acceptance of 80 percent of each week's dissolution payment constituted "acquiesce[nce], in the sense of waiver, to the program of reduced weekly instalments [sic]").
The cases Raymond and Fiorita also provide examples of waiver based on a mutual post-dissolution agreement between the parties. In the former case, the court cited Lownds for the proposition that a finding of waiver is possible when there exists a "long term acceptance by one party of a change in a court order when that party could have taken action to protest." Raymond v. Raymond, 6 Conn. L. Rptr. 15 (Conn.Super. 1992) (quoting Lownds, 41 Conn.Supp. at 107). Even though the court in Lownds found no waiver because the plaintiff's inability to file a motion for modification of support was caused by the defendant's flight from the jurisdiction, the court in Raymond extended the analysis and held the waiver defense applicable where the plaintiff and defendant orally modified the support agreement and the plaintiff capable of having the original order enforced by the court, took no action for nine years. Raymond, 6 Conn. L. Rptr. 15.
Similarly, the court in Fiorita held that waiver by express agreement to failure to pay the full amount of child support was established so as to bar recovery of the arrearage. Fiorita v. Fiorita, 2000 WL 1198062 (Conn.Super.Ct. 2000). In that case, the court found that the plaintiff had induced the defendant take custody of their four children in exchange for the elimination of the defendant's support obligations. Id. While the present facts are clearly not so one-sided as Fiorita, the underlying rationale applies because of the mutual modification of both parties' support obligations, the defendant is entitled to an equitable defense of waiver.
The Superior Court's rulings in Fiorita is an unpublished opinion.
5. Unclean hands
"For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands." Hill v. Raffone, 103 Conn.App. 737, 745 (2007). The defendant explicitly asserts the defense of unclean hands, asserting that the plaintiff's attempt to seek equitable relief is barred by her own failures to abide by the terms of the dissolution agreement. Def.'s Br. 6-8.
The available evidence on the record appears to support the defendant's contention that the plaintiff in several ways failed to honor her own obligations under the dissolution agreement. In the first instance, the defendant justified his decision not to provide the plaintiff with reimbursement for her tax liabilities by reference to the plaintiff's failure to pay the mutually agreed orthodontist expenses, a cost which the defendant incurred unequally and an allegation the plaintiff did not deny. Tr. 23. Furthermore, the plaintiff admittedly stopped providing her two sets of tax returns to the defendant after 2002 following their modification of the support obligations and the plaintiff's claim of Molly Zipkin as a deduction. Tr. 9, 13-14, 18.
Finally, in her testimony concerning unshared extracurricular expenses, the plaintiff admitted that she had incurred additional expenses, including automobile-related costs, without consulting with the defendant before the fact as required by the dissolution agreement. Tr. 17, 20. While the testimony of both parties plainly revealed multiple failures on both sides, the defendant's contention that the plaintiff should be barred from obtaining equitable relief appears well founded in both fact and law.
B. Determination/modification of extracurricular activity expenses totaling $2,368.00
Closely related to her claims for support arrearage, the plaintiff's additional request for an award for unreimbursed extracurricular activities is subject to some of the same equitable defenses. Specifically, the defendant has offered a compelling response to the plaintiff's request through the defenses of waiver and unclean hands on largely the same grounds as were asserted in opposition to the request for support arrearage.
Because the facts and law are essentially identical, the analysis is effectively the same for both claims. The defendant asserts that the plaintiff waived her right to receive payment for the extracurricular expenses because she abandoned the dissolution agreement's provision for sharing them by unilaterally incurring additional expenses without the defendant's prior consent. Tr. 17, 20. In addition, the plaintiff did not contradict the defendant's testimony that she also had failed to fulfill her share of the additional expenses, such as the non-payment of orthodontist bills on behalf of Molly Zipkin, suggesting that in her claim for reimbursement, her own hands are unclean. Tr. 23.
C. Claim for interest payments through July 15, 2008, totaling $5,241.60
Given that the plaintiff's claims, both the support and extracurricular arrearages are vulnerable to multiple equitable defenses, and that the plaintiff's request for support modification is barred by operation of Connecticut General Statutes § 46b-86(a), accrued interest on the arrearage would appear to be moot.
D. Claim for award of attorneys fees totaling $4,669.30
Award of counsel fees is governed by Connecticut General Statutes § 46b-62. In addition, Connecticut General Statutes § 46b-82 sets out the criteria that must be considered by the trial court in determining whether to award alimony or counsel fees, and, if so, the amount thereof. The court has considered the question of attorneys fees in light of the strengths and weaknesses of the plaintiff's present claims, particularly give that "[t]he decision to award counsel fees in a dissolution case is clearly a matter within the trial court's discretion." Diamond, 32 Conn.App. at 738. The court declines to award legal fees to either party.