Dana Soderberg et al. v. Howard Soderberg et al. (2010)

MEMORANDUM OF DECISION

This is a civil action brought by Dana Soderberg and her mother Deborah Soderberg against Howard Soderberg and Patricia Soderberg.   Howard is Dana's father and ex-husband of Deborah, and Patricia is Howard's sister and Dana's aunt.   The suit is based on the terms of an agreement entered into by Dana, Howard and Patricia on May 13, 2005.

The two-count amended complaint alleges in the first count a breach of contract, that Dana, Howard and Patricia entered into the aforesaid agreement on May 13, 2005, that pursuant to the agreement Howard agreed to make all payments for principal and interest on Dana's school loans, that Howard was to be responsible for undergraduate college tuition, fees and books until Dana was 25 years of age, that Howard would pay for Dana's automobile insurance while she attended college up to a maximum of $3000.00 per year, and that Howard and Patricia would hold Dana harmless from any loss she may sustain by virtue of Howard's failure to pay the school loans.   In the first count Dana is seeking money damages and attorneys fees.

The second count of the amended complaint pertains to the claim of Deborah Soderberg and repeats all of the allegations of the first count, alleges that Deborah was a third party beneficiary of the May 13, 2005 contract entered into between her daughter and the defendants, and that as a result of the defendant's breach of the contract Deborah had to incur Dana's tuition, incidental school expenses and automobile insurance.   Deborah seeks money damages and her attorneys fees.

Howard and Patricia are each self-represented.   Howard filed a motion to dismiss the second count filed by Deborah which was granted by the court (Alander, J.).   Although Patricia did not join in the motion to dismiss, all of the parties have treated the court's ruling on Howard's motion to dismiss the second count as applying to both defendants.   The court therefore will consider the complaint in this case as consisting of one count filed by Dana as against Howard and Patricia.

The answers and five special defenses of the defendants are identical.   They admit the execution of the May 13, 2005 agreement, allege that the agreement speaks for itself, and deny that the defendants are in breach of the agreement.   By way of five special defenses the defendants allege that the plaintiff has breached the agreement by failing to make reasonable efforts to apply for available student loans, by failing to attend college full time, by dropping college courses paid for by Howard and using the refunds for her personal expenses, by failing to provide Howard with receipts for tuition, fee and book payments, and by failing to use monies paid to her by Howard for educational expenses.   In addition, Howard has filed a counterclaim alleging that Dana has breached the agreement by dropping college courses paid for by Howard and using the refunds for her personal expenses, and by converting monies paid to Dana directly by Howard for books for her personal use.   Howard seeks money damages on this counterclaim.   Dana denies all of the allegations of the defendants' special defenses and of Howard's counterclaim, except that she admits that on May 13, 2005 the parties entered into a written agreement pursuant to which the defendants paid the college expenses of the plaintiff.

The case was heard by this court in a bench trial on April 20 and 21, 2010.   The witnesses were Dana, Deborah, Howard and Patricia Soderberg.

The court finds the following facts and reaches the following conclusions.   The marriage of Deborah and Howard Soderberg was dissolved by a judgment entered in the Superior Court, Judicial District of Fairfield, on April 26, 2004.   There were three children of the marriage.   Dana was born on April 25, 1983, Amanda born on September 22, 1984, and Erik, born on April 16, 1986.   At the time of the dissolution of the marriage Dana and Amanda were in college and Erik was in high school.   Deborah and Howard Soderberg had entered into a dissolution agreement which was incorporated into the judgment of dissolution, and which included educational support orders for the three children providing that Howard would be fully responsible for the college tuition, books, fees and usual costs incident to attending college.

On May 13, 2005 Dana, Howard and Patricia entered into the agreement (Exhibit 1) which is the basis for this litigation.   Exhibit 1 referred to the educational obligations of Howard, as set forth in the dissolution agreement, and it provided that the defendants have requested that Dana apply for any student loans that may be available in order to obtain the funds necessary for the tuition and fees incident to attending college.   Exhibit 1 also provides that the proceeds of any such loans shall be used for college tuition and fees, that Howard shall make all payments on the loans when they are due, that Howard and Patricia shall indemnify and hold Dana harmless from any loss which she sustains by virtue of Howard's failure to pay the loans when due, that Dana shall not be liable for her failure to apply for any particular loan, nor for her failure to consummate any particular loan agreement, that Howard shall remain responsible for Dana's undergraduate college tuition, fees and books until she reaches age 25, that Howard shall continue to pay for Dana's automobile insurance while she is attending college up to a limit of $3000.00 per year.   Finally, exhibit 1 provides that Dana is entitled to recover costs and reasonable attorneys fees in any action brought to enforce exhibit 1, that the loan payment obligations of Howard and Patricia shall be joint and several, and that Dana shall provide Howard with copies of all receipts for tuition, fee and book payments.

Despite considerable disagreements concerning Howard's payment of his obligations as proscribed in exhibit 1, Howard eventually made all of the payments for which he was liable up to March 24, 2007.   Dana was about to begin her senior year at Southern Connecticut State University but Howard refused to pay for the tuition and fees that needed to be paid in advance of the school year.

In August 2007 Dana borrowed $20,000.00 from a lending institution in order to pay for the tuition, fees and other expenses with respect to her senior year at Southern Connecticut.   She asked both Howard and Patricia to co-sign on the loan but they refused.   Deborah agreed to cosign the loan in order for Dana to obtain the $20,000.00.   All of the proceeds of the loan was spent on the tuition, fees and other expenses with respect to Dana's senior year in college.

The plaintiff Dana has proven that Howard agreed to make all payments on Dana's August 2007, school loan, and that Howard and Patricia agreed to hold Dana harmless from any losses she may sustain by virtue of Howard's failure to pay the school loan.   The plaintiff has also proven that Howard agreed to pay for the insurance on Dana's automobile while she was attending college.   The plaintiff has proven that she has performed all of her obligations as set forth in Exhibit 1. The defendants have failed to prove the claims set forth in their special defenses and in Howard's counterclaim.

The plaintiff has proven that she has paid or owes her mother the sum of $6272.89 for payments made on the August 2007 school loan through April 2010.   She has paid $933.30 for automobile insurance that Howard agreed to pay.   Exhibit 1 also provides for the recovery of reasonable attorneys fees and costs which are found to be $7,159.00.

Judgments may enter in favor of the plaintiff Dana Soderberg against the defendant Howard Soderberg in the sum of $14,365.19, and against the defendant Patricia Soderberg in the amount of $13,431.89.   Judgments may enter in favor of the plaintiff Dana Soderberg against the defendants ordering the defendants to make all payments of principal and interest on the $20,000.00 loan taken out by the plaintiff in August 2007.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.