Thomas Audino v. Kimberly Audino (Roviello) (2012)

MEMORANDUM OF DECISION

This matter comes before this court on the plaintiff's Motion for Order of Child Support.   The defendant objects to this motion asserting that an agreement entered into by the parties on March 21, 2007 extinguished any duty the defendant had to pay child support.   The court listened to the testimony of the parties and witness, has reviewed the exhibits and court documents, has considered the statutory and case law and finds as follows.

The parties' marriage was dissolved after trial, on December 1, 2004.   Custody of the oldest child, Jacob, date of birth 7/20/90, was awarded to Mr. Audino.   Custody of the two younger children, Samuel, date of birth 7/17/94, and Zoe, date of birth 9/10/97, was awarded to Ms. Audino.   In his decision, the Honorable Brian Fischer ordered the plaintiff to pay $482.00 per week in unallocated alimony and child support, which he designated as $275.00 per week in alimony and $207.00 per week in child support, which was calculated pursuant to the Child Support Guidelines.   The alimony portion of the unallocated support provision was ordered for seven years, or until 12/1/11.

On December 25, 2005, temporary custody of Samuel and Zoe was transferred to the Plaintiff.   The children have resided with their father since that date.   On March 21, 2007, the parties presented to this court and entered into an agreement on financial and children related issues.   The resolution of the plaintiff's current Motion for Child Support rests upon the interpretation of a provision in the agreement entered into and approved by the court on March 21, 2007.   Paragraph 3. of this agreement states as follows:

The parties agree that the Defendant waives any claim to further alimony and understands that she is not entitled to alimony in the future.   The Defendant is waiving her seven-year alimony order with the parties' express understanding that any child support that she would have to pay is less than the alimony that she is waiving in the past and future.   This understanding includes any claim by Plaintiff to day care or un-reimbursed medical.   The Defendant's Child Support would be approximately $100/week per Guidelines, so the waiver of $275/week as alimony is deemed in the best interest of the children and essentially a wash in the children's benefit and an appropriate deviation per the statute.

Each party opines that this provision is crystal clear;  however, their interpretations differ substantially.   The plaintiff states that the defendant's obligation to pay child support was suspended during the period of the plaintiff's alimony obligation, as the amount one parent owed to the other was essentially a “wash.”   Once the alimony obligation terminated;  however, the defendant was again responsible for the payment of child support.   The defendant avers that the provision provides for the waiver of alimony in exchange for a waiver from all child support obligations, past, present and future.   Because the alimony payments she would have received were substantially greater than the amount she would have paid in child support, the defendant states that she would have no reason to agree to this arrangement unless the provision permanently relieved her of the responsibility to pay child support.

Because a stipulation is considered a contract, the interpretation of the parties' agreement of March 21, 2007, is guided by the general principles governing the construction of contracts.  “[I]f 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 ․ Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ Finally, in construing contracts, we 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–Abmadi, 294 Conn. 384, 389–91, 985 A.2d 319 (2009).

The agreement of March 21, 2007 is unambiguous.   Ms. Audino waived the proceeds of her seven-year alimony order;  in turn, she was relieved of her child support obligation during that time.   The seven year alimony period was the only time frame referred to in the agreement, and the court finds no language to support the defendant's position that she was relieved of her child support obligation indefinitely.   The only viable interpretation of this paragraph is that the child support was waived concomitantly with the alimony:  until December 1, 2011.

Paragraph 6 of the agreement further supports this interpretation.   In it the parties agree, inter alia, that “[d]efendant waives all claims to past orders re:  ․ e) past due or prospective alimony, f) past due child support as does the plaintiff.   The plaintiff waives any claim to a) past due child support, b) modification of alimony.”   The plaintiff clearly did not waive a claim for future child support.   If the parties intended Ms. Audino to be relieved of all child support obligations, forever, it could have been so articulated, as the terms regarding the alimony were clearly stated.   See:  Peterson v. Sykes–Peterson, (AC 32314), February 21, 2012.   Moreover, the court agrees with the plaintiff that any such agreement would in essence constitute a nonmodifiable child support order.   The Supreme Court has determined that nonmodifiable child support orders are impermissible as contrary to the best interest of the child, in that they limit the child's right to support.   See generally:  Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985).

Taken as a whole, this agreement provides that the parties would not exchange payments of alimony or child support during the order of alimony.   While the plaintiff may have derived a greater monetary benefit from this arrangement,¹ this fact was recognized by both parties and deemed to be in the children's best interest.

Based on the foregoing the court enters the following orders:

1) Child support shall be paid by the defendant to the plaintiff in the amount of $182.00 per week, in accordance with the guidelines attached.*

2) The defendant shall pay 37% of all un-reimbursed medical expenses;  again, pursuant to the guidelines.

3) These orders shall be in effect until the older child turns 18 and has graduated from high school, which the court assumes to be July 17, 2012.²

4) At the time Samuel turns 18 and has graduated from high school the defendant's child support shall be reduced to $136.00 per week, and she will be responsible for 40% of Zoe's unreimbursed medical expenses.   This comports with the child support guidelines calculated for one child.  (Attached.)*

5) The defendant's child support obligation shall terminate pursuant to the terms of Connecticut General Statute § 46b–84(b).

6) Both attorneys' requests for fees are denied.

By the Court,

Wolven, J.

FOOTNOTES

FN1. The defendant was also relieved of her obligation to pay un-reimbursed medical and child care expenses during this time, an amount which this court has insufficient evidence to determine..  FN1. The defendant was also relieved of her obligation to pay un-reimbursed medical and child care expenses during this time, an amount which this court has insufficient evidence to determine.

FN2. If Samuel does not graduate from high school in 2012, these orders shall be in effect until Samuel graduates from high school or turns 19, whichever is sooner.*Editor's Note:  The referenced Child Support Guidelines have not been reproduced herein..  FN2. If Samuel does not graduate from high school in 2012, these orders shall be in effect until Samuel graduates from high school or turns 19, whichever is sooner.*Editor's Note:  The referenced Child Support Guidelines have not been reproduced herein.

Wolven, Carol A., J.