Kimberly J. Hines v. Craig A. Hines (2010)

MEMORANDUM OF DECISION REGARDING MOTION FOR MODIFICATION (141) AND MOTION FOR CONTEMPT (142)

PROCEDURAL BACKGROUND

The record reflects that the parties were divorced pursuant to a separation agreement dated July 7, 2004.   The agreement called for the husband to pay to the wife certain sums of alimony, child support and that “pursuant to 46b-56c:  the defendant father will pay all costs of college education for all three children.  ‘All costs' is defined in its most generic understanding, including tuition, room, board, lab fees etc.”   There were other provisions regarding the maintenance of medical insurance, debts, and the equal division of retirement accounts.   Regarding the marital home which the husband claimed had equity of $162,000 and which the wife claimed had equity of $107,000 at the time of dissolution, the parties agreed that the husband would retain the home but pay to the wife the sum of $100,000.

The parties appeared, together with counsel on August 24, 2010, to argue their respective motions;  the wife's motion for contempt alleging that the husband had intentionally failed or refused to pay the college costs for their son Chad Hines who had entered college on August 23, 2010 and the husband's motion to modify the provisions of the college education clause of the agreement.

FINDINGS OF FACT

The court finds proven by a fair preponderance of the evidence the following facts:

1. The parties were divorced pursuant to a separation agreement dated July 7, 2004.

2. The agreement called for the husband to pay to the wife certain sums of alimony, child support and that “pursuant to 46b-56c:  the defendant father will pay all costs of college education for all three children.  ‘All costs' is defined in its most generic understanding, including tuition, room, board, lab fees etc.”   Regarding the marital home which the husband claimed had equity of $162,000 and which the wife claimed had equity of $107,000 at the time of dissolution, the parties agreed that the husband would retain the home but pay to the wife the sum of $100,000.

3. The father paid for the college education of their eldest child, Katherine Hines, who attended a private school costing in excess of $25,000 per year.

4. The middle child, Garrett Hines, has taken only a few college courses which the father paid for.

5. When it came time for Chad Hines to plan for college, the father paid all of the application fees, deposits and for various campus visits.

6. When the parties began discussing the payment of college for Chad Hines, disagreements arose and the father refused to pay 100% of his college costs.   The father filed a motion to modify the terms of the college costs provision on June 22, 2010 and the mother filed a contempt citation dated July 2, 2010.

7. There existed approximately $10,000 of savings bonds which the parties stipulated and agreed at the time of judgment and at the present time, could and should be used for the college expenses of Chad Hines.   The father withdrew $2,700 from said fund for the payment of the child's first month of college expenses.

8. When Chad Hines requested of his father $250 for his books, the father insisted that he first purchase the books with his own funds, produce a receipt and then the father would reimburse him that sum.

9. The college attended by Chad Hines permits monthly payments which are due on the 20th of each month.   The father has paid in full all amounts due to the college as of this date and no further payments are due until September 20, 2010, October 20, 2010, etc.

10. The parties testified as to the history of their marriage and divorce and the negotiations which led to the settlement agreement and judgment.   The parties had been married for 26 years and had three minor children.   At the time of dissolution, the husband earned $92,000 per year and the wife earned $260 per week as an instructional assistant at the East Lyme Board of Education.  (It is unclear if she was paid 52 weeks or only during the school year so that her income was somewhere between $10,000 per year and $13,520 per year.)

11. Significantly, the husband's pretrial memorandum dated May 13, 2004 states “husband is willing to assume post-high school education for their children until they are 23, using UCONN in-state tuition and room and board as a limit but that obligation must be factored into the rest of the settlement.”   In said document, he argued “wife is earning $10 per hour but works part time.   With the custody arrangement and her choice to attend school, her earnings for the analysis should be $20,000 and husband's willingness to provide the children's post-high school education must be factored in ” (emphasis provided).

12. The wife argued convincingly that this language, coupled with the fact that she was leaving the 26-year marriage with five years of diminishing alimony and her husband's out earning her by a multiple of eight, clearly demonstrates that she was trading a more significant alimony order for the husband's assuming the obligation to pay 100% of the children's college education costs.

13. The husband argued unconvincingly that the paltry alimony order was in exchange for her receiving a higher share of the equity of the marital residence, particularly when he valued the equity of the marital residence at $162,000.

14. The court finds that, in fact, the wife traded an alimony award which should have been for more money and for a greater term for the husband's willingness to provide 100% of the children's college education costs.

15. The court finds that the husband is not in willful contempt of the court order regarding the college education expenses because he filed a motion to modify well before the college expenses were fully due claiming that the educational support order is modifiable pursuant to Connecticut General Statutes § 46b-56c(h) and that there had been a substantial change in circumstances both in his employment circumstances and the wife's earnings since the date of dissolution.   It was reasonable for him to assume that the issue would be decided in a timely manner in advance of the due date for the college expenses.   Moreover, that portion of the college expenses presently due has been paid in full.

LEGAL DISCUSSION

There was spirited debate and disagreement over the significance of the language in the separation agreement “pursuant to 46b-56c ․” The husband argued that this language necessarily invokes the statute regarding post-majority educational support both as to its “UCONN cap provisions” and the modification provision.   The wife argued that the reference to the statute is insignificant and that the college obligation is a non-modifiable provision and that it is not capped.

The court in Danehy v. Danehy, 118 Conn.App. 29 (2009) held that “Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts.”   (Internal quotation marks omitted.)  Cushman v. Cushman, 93 Conn.App. 186, 191, 888 A.2d 156 (2006).

A court simply cannot “disregard the words used by the parties ․” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973).

The court in Isham v. Isham, 292 Conn. 170, 180 (2009) held that “[i]t is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts.”   Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999).   When construing a contract, we seek to determine the intent of the parties “from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.”  (Emphasis added;  internal quotation marks omitted.)  Id. 235.   “When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract ․ Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument ․ Hare v. McClellan, 234 Conn. 581, 597, 662 A.2d 1242 (1995).”  (Citation omitted;  internal quotation marks omitted.)  Poole v. Waterbury, supra, 266 Conn. 89.  “When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact.”  (Internal quotation marks omitted.)  O'Connor v. Waterbury, 286 Conn. 732, 743, 945 A.2d 936 (2008).

The court in Dougan v. Dougan, 114 Conn.App. 379, 387 (2009) held that “[t]he stipulation for judgment is an agreement by the parties that the court incorporated into the judgment and is a contract of the parties.”

Our Supreme Court has also recognized that the government has an interest in encouraging private agreements that have been incorporated into decrees for dissolution, separation or annulment.   See Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) (“strong policy that the ‘private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine’ ”).   Negotiated settlement of these affairs conserves judicial resources and encourages private resolution of family issues.   Additionally, the government has an interest in preserving and enforcing orders that were entered by the courts in dissolution proceedings after a determination that the judgment is fair and equitable.   See General Statutes § 46b-66.

Finally, it is well and firmly established that “[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”  Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984);  accord Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005);  Krafick v. Krafick, 234 Conn. 783, 806, 663 A.2d 365 (1995);  Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993);  Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989);  Picton v. Picton, 111 Conn.App. 143, 149-50, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009);  Chyung v. Chyung, 86 Conn.App. 665, 668, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005);  Quindazzi v. Quindazzi, 56 Conn.App. 336, 339, 742 A.2d 838 (2000);  Cordone v. Cordone, 51 Conn.App. 530, 533, 752 A.2d 1082 (1999);  Puris v. Puris, 30 Conn.App. 443, 449, 620 A.2d 829 (1993);  Watson v. Watson, 20 Conn.App. 551, 557, 568 A.2d 1044 (1990), rev'd in part on other grounds, 221 Conn. 698, 607 A.2d 383 (1992);  Daly v. Daly, 19 Conn.App. 65, 70, 561 A.2d 951 (1989);  Cuneo v. Cuneo, 12 Conn.App. 702, 710, 533 A.2d 1226 (1987).   Indeed, stipulations for judgment often include very delicately balanced and carefully negotiated terms in the resolution of important family issues.

Based on the foregoing, the court concludes that the reference to the statute in the separation agreement necessarily means that the obligation may be modifiable and that it is capped at the cost for an in-state student attending the University of Connecticut.

Notwithstanding, the court declines to modify the husband's college education obligation, at the cost of an in-state student attending the University of Connecticut, because there has not been a substantial change in circumstances.

The husband has not suffered a diminution of his income as he is presently receiving a generous severance package, $600 more than his income at the time of dissolution.   In addition, he is free to pursue employment while he receives his severance pay for at least 40 more weeks.   At the same time, the wife's earned income together with her alimony award was $760 per week at the time of dissolution and she is presently earning $1,177 per week as a nurse or an increase of $417 per week, less than the husband's increase.

ORDER

The husband is ordered to pay the cost of the college education for Chad Hines as described and limited in Connecticut General Statutes § 46b-56c.   He may use the funds from the savings bonds to that end.   He is not responsible for any amount in excess of the cost of an in-state student attending UCONN.   He may make the payments to the school in any payment plan acceptable to the school but shall do so in a timely manner pursuant to the rules of said school.   He may require that his children obtain their own books but reimburse them within seven days of his receiving a receipt for the purchase or their rental from www.chegg.com, a practice which is gaining popularity with college students.   The motion for contempt is denied, the motion for modification is denied and the request for attorneys fees is denied.

Shluger, J.

Shluger, Kenneth L., J.