Nancy C. Leopard v. Steven Leopard (2010)

MEMORANDUM OF DECISION

I

BACKGROUND AND FACTS

The plaintiff in this case filed a motion for post-secondary educational support (educational support) on August 11, 2010.   An evidentiary hearing was held before the court on October 27, 2010, at which there were no disputes between the parties over the following facts:  The marriage of the parties was dissolved on August 29, 2005, and the parties' mediated marital settlement agreement, dated August 23, 2005, was incorporated into the judgment of dissolution.   At the time of the dissolution, the court, Prestley, J., retained jurisdiction for the purpose of entering an educational support order pursuant to General Statutes § 46b-56c.   In addition to retaining jurisdiction for this purpose, the parties specifically required cooperation between each other in obtaining scholarships and loans and in shifting as much as possible of the financial burden of higher education to their children.

There were two minor children born issue of the marriage:  Emily Lynn Leopard, born on July 6, 1992, and Megan Elizabeth Leopard, born on December 10, 1994.   Emily has since graduated from high school and is attending Manchester Community College (MCC), while living at home with her younger sister, Megan, and the plaintiff.   Emily is employed, filing medical documents and earning sufficient funds to pay $900 of her $1,730 fall semester tuition bill and to reimburse the plaintiff for all of her books and course materials totaling approximately $500.

The plaintiff has paid the tuition cost for one summer course at MCC in the amount of $473, as well as the remaining fall tuition bill in the amount of $830.   She has also paid for Emily's living expenses at home, which she estimates to be $737 for each month, compared with the $1,268 at a state university.   These living expenses include Emily's proportional share of the mortgage, utilities and food expenses, as well as internet, cell phone, clothing, restaurants and drugstore purchases.   The plaintiff also claims attorneys fees in the amount of $3,955 for the expense of bringing this action.

The defendant has not contributed to the payment of these college expenses.   However, he has credibly testified that Emily either failed or refused to assist him in applying for higher educational loans and for a scholarship available through his employer.   In addition, he claims to have no funds available to assist his daughter with the costs associated with her higher education.   He attributes Emily's lack of cooperation to unidentified issues involving his recent remarriage.

According to the parties' most recent financial affidavits filed with the court, the plaintiff earns gross weekly income of $680, with net weekly income of $561.   Together with child support she receives for the remaining minor child, Megan, her total net weekly income is $725.   The plaintiff's gross weekly income is $1,367, with net weekly income of $868.   According to the Child Support Guidelines Worksheet filed with the court on October 13, the parties' gross income amounts are the same as those disclosed on their financial affidavits;  however, the “net income” figures on line 14 show net weekly income of $646 for the plaintiff and $916 for the defendant.   According to these figures, the defendant's share of the combined weekly income is approximately 59%, as shown on line 17 of the Guidelines.   By comparison, the defendant's total “net disposable income” is reduced to $752 for purposes of section III of the Guidelines, by netting out his child support payment for Megan.   Using this figure, the defendant retains 48% of the combined net disposable income, according to line 28 of the Guidelines.

The specific terms and conditions of the parties' educational support order are as follows:  “College Education.   A) The parties agree to cooperate with each other to assist the children in meeting their college or vocational school costs.   Such cooperation includes, but is not limited to, obtaining scholarships and/or loans.   The parties will cooperate to shift as much as possible of the financial burden of higher education to the children.   B) The parties agree to split equally any remaining college or vocational school costs after reduction for any scholarships, loans, and funds set aside by each child specifically for the purpose of meeting post-secondary school expenses.   The proportional share of each parent shall be determined using the net income figures as calculated using the Child Support Guidelines Worksheet or successor form.   C) The parties hereby reserve their rights to file a motion or petition for an educational support order if they are unable to reach a mutually acceptable split of college expenses.”

II

DISCUSSIONA. The Marital Settlement Agreement

The court must first consider the interpretation of the parties' marital settlement agreement.  “[The] interpretation of a separation agreement that is incorporated into a dissolution decree is guided by the general principles governing the construction of contracts.   Thus, if there is definitive contract language, the determination of what the parties intended by their commitments is a question of law ․ The language used in a contract must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.   Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Finally, in construing contracts, [the court must] give effect to all the language included therein, as the law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous ․ Therefore, when interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result.”  (Citations omitted;  internal quotation marks omitted.)  Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 390-91, 985 A.2d 319 (2009).   See Russell v. Russell, 95 Conn.App. 219, 221-22, 895 A.2d 862 (2006).

It is clear that the parties intended for the court to retain jurisdiction for the purpose of entering an educational support order in this case, subject to certain conditions.   Furthermore, the court finds as a preliminary matter that the general statutory conditions for entering an educational support order have been met, including Emily's attendance at an accredited institution of higher education and by pursuing an appropriate course of study on a full-time basis.   See subsection (e) of General Statutes § 46b-56c.¹

B. General Statutes § 46b-56c

Although subsection “C” of the educational support order provides the basis for the court's jurisdiction pursuant to General Statutes § 46b-56c, the applicable provisions of the statute must be read in combination with the parties' specific contractual language, incorporated into the judgment of the court.   For example, in issuing a educational support order, subsection (c) of the statute requires consideration of “all relevant circumstances, including:  (1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  [and] (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available ․” General Statutes § 46b-56c(c).  The language of the agreement provides somewhat different factors for consideration in section (A), as follows:  “The parties agree to cooperate with each other to assist the children in meeting their college or vocational school costs.   Such cooperation includes, but is not limited to, obtaining scholarships and/or loans.   The parties will cooperate to shift as much as possible of the financial burden of higher education to the children.”

The language of the agreement is inconsistent with the statute to the degree it affirmatively requires the parties to cooperate in obtaining scholarships and loans and further requires their cooperation in shifting as much as possible of the financial burden of higher education to the children.   In considering whether the language of the agreement or that of the statute prevails, the court notes that jurisdiction over educational support orders is permissive and not mandatory.  General Statutes § 46b-56c repeatedly provides that educational support orders may be entered “on motion or petition of a parent ․” And although the provisions of General Statutes § 46b-56c are clearly a statement of public policy, the court finds that the language of the parties' agreement neither violates any mandate contained within the statutory language nor does it appear to violate any public policy reflected in this or any other state law.²  Therefore, the court will follow the superseding provisions of the parties' agreement, where they diverge from the language of the statute.

C. Educational Support Order

1. The Current Semester

Although the plaintiff must be acknowledged and credited for her support of Emily's continued higher education, the court will not enter an educational support order for the current semester to reimburse her for expenses and payments made retroactively.   Based upon the applicable law and evidence presented at the hearing, the court finds that the parties failed to cooperate to obtain student loans and scholarship funds for the purpose of their daughter's higher education, as required by their agreement.   Furthermore, although Emily has absorbed a significant percentage of costs of the first semester of her higher education, the court finds that the parties have not maximized Emily's financial burden of paying for the costs of her higher education, as required by their agreement.   The court finds this to be the case especially in light of the fact that there are no scholarships, grants or student loans in place and in light of the relatively minimal expense associated with attending Manchester Community College while living at home with the plaintiff, compared with the cost of attending a state university.

2. Future Educational Support

The plaintiff seeks an order for the future educational support of both Emily and Megan, pursuant to subsection “C” of their educational support order.   Based upon the evidence presented, it is clear that the parties are unable to reach a mutually acceptable division of college expenses, thereby triggering subsection “C” of the dissolution judgment and authorizing jurisdiction for the court to enter an educational support order.

In entering an educational support order in this case, the court must consider the specific provisions of the subsections (A) and (B) of the educational support order.   As previously discussed, subsection (A) of the order provides a general standard of cooperation between the parties to assist the children in meeting their college costs, including obtaining scholarships and loans.   It also requires them to cooperate in shifting as much as possible of the financial burden for college costs to the children.   Although this language provides the court with these general standards in subsection (A), leaving room for the exercise of some discretion, the court nonetheless finds this language to be a clear and unambiguous statement of the intent of the parties.

Based upon this language, the court enters the following educational support order, in addition to the existing language of the agreement.   The parties shall cooperate to file a Free Application for Federal Student Aid (FAFSA) form or its successor, if any, in a timely manner and to apply for all financial aid available through the institution of higher education attended by the child, including scholarships as well as need-based grants and loans.   Failure of either party to reasonably cooperate in the timely filing of the FAFSA form or applying for such financial aid shall be the basis of an action for contempt.   Failure of the child to reasonably cooperate in the timely filing of the FAFSA form or applying for such financial aid shall relieve the parties of any responsibility to provide educational support.

Any financial aid awarded in the form of merit scholarships, need-based grants or loans provided in a financial aid package by the institution of higher learning attended by the child shall be used to reduce college-related expenses, as defined by subsection (f) of General Statutes § 46b-56c, except that room and board shall not include expenses associated with living at home with a parent, which shall be paid for by the child.³  In addition, each child shall be responsible for any work-study opportunities made available as a part of a financial aid package.   The parties shall then cooperate to shift any reasonable additional educational expenses to the child, as required by their agreement, including any “funds set aside by each child specifically for the purpose of meeting post-secondary school expenses.”   Although undefined by the agreement, the court interprets this provision to mean scholarship funds obtained in addition to a financial aid package provided through the child's institution of higher learning, any gifts of educational funds and income from employment to pay for college expenses which does not unreasonably interfere with the child's higher education.   The remaining college-related expenses shall be shared by the parties proportionally, pursuant to their agreement and as provided below.

3. Proportional Share of Expenses

The parties shall each be responsible for their proportional share of the remaining college-related expenses, based upon the net income of each party pursuant to the Child Support Guidelines.   This order is based upon subsection (B) of the agreement;  however, the court notes that the language of this provision is internally inconsistent and subject to interpretation.   It specifically provides:  “The parties agree to split equally any remaining college or vocational school costs after reduction for any scholarships, loans, and funds set aside by each child specifically for the purpose of meeting post-secondary school expenses.   The proportional share of each parent shall be determined using the net income figures as calculated using the Child Support Guidelines Worksheet or successor form.”  (Emphasis added.)   Except under the unlikely factual circumstance of coincidence, splitting the remaining college costs equally on one hand, and proportionally pursuant to net income percentages under the guidelines on the other, is ambiguous at best, if not patently inconsistent.

“A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008).   Based upon the inconsistent language of the agreement, the court finds the contract to be unclear and ambiguous and subject to interpretation, and in interpreting ambiguous contract language, “it has been well settled that ‘the particular language of a contract must prevail over the general.’  “ Issler v. Issler, 250 Conn. 226, 237, 737 A.2d 383 (1999).

The court finds the “split equally” language of subsection (B) to be more general than the language requiring a proportional splitting of college costs, which specifically requires the formulation of the parties' proportional responsibility based upon their net incomes pursuant to the Child Support Guidelines.   Because the more general provision for equally splitting college costs is completely inconsistent, except under a scenario of factual coincidence, the court concludes that this provision was erroneously included in the agreement.

In determining the “net income” of the parties for the purpose of this order, the court clarifies that these are the “net income” figures on line 14 of the Child Support Guidelines, which currently show net weekly income of $646 for the plaintiff and $916 for the defendant.   The specific language of the agreement refers to “net income” and the court assumes that this language and specific reference to the guidelines properly reflects the intent of the parties.   According to these figures, the defendant's share of the combined weekly income is approximately 59%, as shown on line 17 of the Guidelines.   Absent a substantial change in circumstances, these percentages shall remain in effect.

D. Attorneys Fees

Although the motion before the court is not one for contempt, per se, the plaintiff seeks the payment of attorneys fees, claiming that the defendant willfully failed to comply with the educational support order of the court.   Based upon the facts found by the court, this motion is denied.

SO ORDERED.

BY THE COURT,

Mark Taylor, Judge

FOOTNOTES

FN1. General Statutes § 46b-56c provides:  “(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction.   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. (b)(1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date.   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.   The court may accept a parent's waiver of the right to file a motion or petition for an educational support order upon a finding that the parent fully understands the consequences of such waiver.  (2) On motion or petition of a parent, the court may enter an educational support order at the time of entry of an order for support pendente lite pursuant to section 46b-83.  (3) On motion or petition of a parent, the court may enter an educational support order at the time of entering an order of support pursuant to section 46b-61 or 46b-171 or similar section of the general statutes, or at any time thereafter.  (4) On motion or petition of a parent, the court may enter an educational support order at the time of entering an order pursuant to any other provision of the general statutes authorizing the court to make an order of support for a child, subject to the provisions of sections 46b-212 to 46b-213v, inclusive. (c) The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.   After making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:  (1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;  (5) the child's preparation for, aptitude for and commitment to higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend. (d) At the appropriate time, both parents shall participate in, and agree upon, the decision as to which institution of higher education or private occupational school the child will attend.   The court may make an order resolving the matter if the parents fail to reach an agreement. (e) To qualify for payments due under an educational support order, the child must (1) enroll in an accredited institution of higher education or private occupational school, as defined in section 10a-22a, (2) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment, (3) maintain good academic standing in accordance with the rules of the institution or school, and (4) make available all academic records to both parents during the term of the order.   The order shall be suspended after any academic period during which the child fails to comply with these conditions. (f) The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time instate student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.   An educational support order may also include the cost of books and medical insurance for such child. (g) The court may direct that payments under an educational support order be made (1) to a parent to be forwarded to the institution of higher education or private occupational school, (2) directly to the institution or school, or (3) otherwise as the court determines to be appropriate. (h) On motion or petition of a parent, an educational support order may be modified or enforced in the same manner as is provided by law for any support order. (i) This section does not create a right of action by a child for parental support for higher education. (j) An educational support order under this section does not include support for graduate or postgraduate education beyond a bachelor's degree. (k) The provisions of this section shall apply only in cases when the initial order for parental support of the child is entered on or after October 1, 2002.  (Emphasis added.).  FN1. General Statutes § 46b-56c provides:  “(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction.   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. (b)(1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date.   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.   The court may accept a parent's waiver of the right to file a motion or petition for an educational support order upon a finding that the parent fully understands the consequences of such waiver.  (2) On motion or petition of a parent, the court may enter an educational support order at the time of entry of an order for support pendente lite pursuant to section 46b-83.  (3) On motion or petition of a parent, the court may enter an educational support order at the time of entering an order of support pursuant to section 46b-61 or 46b-171 or similar section of the general statutes, or at any time thereafter.  (4) On motion or petition of a parent, the court may enter an educational support order at the time of entering an order pursuant to any other provision of the general statutes authorizing the court to make an order of support for a child, subject to the provisions of sections 46b-212 to 46b-213v, inclusive. (c) The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact.   After making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:  (1) The parents' income, assets and other obligations, including obligations to other dependents;  (2) the child's need for support to attend an institution of higher education or private occupational school considering the child's assets and the child's ability to earn income;  (3) the availability of financial aid from other sources, including grants and loans;  (4) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;  (5) the child's preparation for, aptitude for and commitment to higher education;  and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend. (d) At the appropriate time, both parents shall participate in, and agree upon, the decision as to which institution of higher education or private occupational school the child will attend.   The court may make an order resolving the matter if the parents fail to reach an agreement. (e) To qualify for payments due under an educational support order, the child must (1) enroll in an accredited institution of higher education or private occupational school, as defined in section 10a-22a, (2) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment, (3) maintain good academic standing in accordance with the rules of the institution or school, and (4) make available all academic records to both parents during the term of the order.   The order shall be suspended after any academic period during which the child fails to comply with these conditions. (f) The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time instate student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents.   An educational support order may also include the cost of books and medical insurance for such child. (g) The court may direct that payments under an educational support order be made (1) to a parent to be forwarded to the institution of higher education or private occupational school, (2) directly to the institution or school, or (3) otherwise as the court determines to be appropriate. (h) On motion or petition of a parent, an educational support order may be modified or enforced in the same manner as is provided by law for any support order. (i) This section does not create a right of action by a child for parental support for higher education. (j) An educational support order under this section does not include support for graduate or postgraduate education beyond a bachelor's degree. (k) The provisions of this section shall apply only in cases when the initial order for parental support of the child is entered on or after October 1, 2002.  (Emphasis added.)

FN2. By way of comparison, see Guze v. Warner, Superior Court, judicial district of Hartford-New Britain, at Hartford, Docket No CV 92 051 5641 (March 31, 1995, Sheldon, J.):  “Instead, the legislature flatly declared that a noncomplying home improvement contract ‘shall not be valid or enforceable against an owner.’   This mandatory provision contains no exceptions, qualifications or conditions.   It does not, moreover, employ the language of presumption or waiver.   In short, it establishes in the clearest and most unequivocal of terms that a non-complying home improvement contract shall never be valid or enforceable against an owner.   For that reason, the defendant's proposed construction of the provision is simply inconsistent with the provision's own terms.”  (Emphasis in original.).  FN2. By way of comparison, see Guze v. Warner, Superior Court, judicial district of Hartford-New Britain, at Hartford, Docket No CV 92 051 5641 (March 31, 1995, Sheldon, J.):  “Instead, the legislature flatly declared that a noncomplying home improvement contract ‘shall not be valid or enforceable against an owner.’   This mandatory provision contains no exceptions, qualifications or conditions.   It does not, moreover, employ the language of presumption or waiver.   In short, it establishes in the clearest and most unequivocal of terms that a non-complying home improvement contract shall never be valid or enforceable against an owner.   For that reason, the defendant's proposed construction of the provision is simply inconsistent with the provision's own terms.”  (Emphasis in original.)

FN3. The court does not agree with the plaintiff's analysis that the proportional costs of maintaining a home should be included in the room and board expenses of a child commuting from home to college.   Unless the argument is that the parties would have down-sized their living quarters, absent the commuting student, the court sees no reason to attribute to her, for example, a proportional share of the ongoing cost of the mortgage, taxes and many of the utilities generally required to maintain the home, with or without her presence in the home.   Although they have value to the child, no evidence was presented to the court that her presence in the home contributed substantially to or caused these expenses.   For these reasons, the court concludes that this cost, if any is to be charged, be the subject of arrangements made between the plaintiff and her child..  FN3. The court does not agree with the plaintiff's analysis that the proportional costs of maintaining a home should be included in the room and board expenses of a child commuting from home to college.   Unless the argument is that the parties would have down-sized their living quarters, absent the commuting student, the court sees no reason to attribute to her, for example, a proportional share of the ongoing cost of the mortgage, taxes and many of the utilities generally required to maintain the home, with or without her presence in the home.   Although they have value to the child, no evidence was presented to the court that her presence in the home contributed substantially to or caused these expenses.   For these reasons, the court concludes that this cost, if any is to be charged, be the subject of arrangements made between the plaintiff and her child.

Taylor, Mark H., J.