Lawrence Kraiza v. Joan Kraiza (2012)

MEMORANDUM OF DECISION ON MOTION FOR CONTEMPT FILED NOVEMBER 7, 2011(164)

The Plaintiff filed the above captioned motion claiming the defendant is in contempt for failure to contribute to the college costs for the parties' daughter E.

Each party appeared with counsel at the hearing on the motion on April 5, 2012.

“In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832 (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 14 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.”   Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).   However, “even in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

The motion for contempt alleges the defendant is in violation of the terms of the parties' Separation Agreement dated January 23, 2008 (the agreement) which was incorporated in the Judgment of Dissolution entered as an order of the court on the same date.   Specifically, Article III—Child Support of the agreement contains a subsection titled “Additional Post Majority Expenses Relative to the children.”   The parties in such section acknowledge having been made aware of the provisions of General Statutes § 46b–56c.

The plaintiff agreed to be responsible for 100% of the cost of a post-secondary education in accordance with the limitations and definitions set forth in General Statutes § 46b–56c.   The parties agreed that if either child were to attend a qualified post-secondary institution with costs greater than those defined by General Statutes § 46b–56c, which means in excess of the amount for which the plaintiff is fully responsible, then the parties are to share such excess costs equally.   Further the parties agreed that any funds received by a child in the form of a grant or scholarship shall be applied as an offset against the parental obligation.

Despite all of the foregoing agreements, the parties now cannot agree on what each is to pay for E.'s education at Bentley University.

They did agree, however, that the so-called UCONN cap under General Statute § 46b–56c is $21,720.   They don't agree on what said amount covers.

So, to address that first:  the plaintiff is seeking to have the defendant contribute towards the costs of E.'s books.   The defendant says books are also required at UCONN and so she should only have to pay for an amount in excess of the books at UCONN.   The defendant is in error.   The statute specifically provides that the UCONN cap covers room, board, dues, tuition, fees, and registration and application costs.   The parties can agree to include books as a part of a post-majority support education order, but such amount is not a component of the UCONN cap.

The defendant also claims that the statute provides that the UCONN cap relates to a full-time student on an annual basis and so she should not be required to contribute to the cost of E.'s college tuition above the UCONN cap prior to the end of a full academic year.   The statute does not set forth the timing of the payments;  it merely provides an outline of what fees and costs for a full-time, in-state student at UCONN shall constitute the so-called cap.   It is not an annual formula nor does it require that payments be made only annually.   The court takes note that Bentley as well as UCONN requires tuition and fees to be paid on a semester basis.   The defendant's obligation to pay one-half of the costs in excess of the UCONN cap is fairly construed to require that she make such payments on a semester basis.  “The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.”  (Citation omitted.)  Zadravecz v. Zadravecz, 39 Conn.App. 28, 31 (1995).

The defendant also claims the motion for contempt was filed prematurely, as it was filed in October 2011.   The court notes the first payments made against the fall semester costs for E. were made in July 2011.   Certainly by October 2011, the semester costs (and book costs) were known and the defendant was liable for her share thereof.

The plaintiff acknowledges being liable for $21,720 on an annual basis for two full-time semesters payable towards E.'s tuition, room, board and other fees at Bentley—so, for the fall semester, the plaintiff is responsible for the first $10,860.

The parties and E. are fortunate that Bentley awarded E. a grant of $22,500 per annum, which was applied by Bentley on a semester basis in the amount of $11,250 per semester.¹

Based on Exhibit 1, the following fees and costs were incurred for E. for the fall 2011 semester:

Activity Fee $ 144

Technology Fee 600

Tuition 18,420

Meals 2,495

Room 3,756

Subtotal $25,424

Less:  Bentley Grant $11,250

Total $14,174

Less:  Plaintiff's

Contribution of UCONN cap $10,860

Balance $ 3,314

Plus Books $ 691

Total to be equally

shared by parties $ 4,005

Accordingly, by a strict reading of the agreement of the parties, each party is liable for one-half of $4,005 for the fall semester.

The agreement does not, however, provide a mechanism for the application of loans obtained by E. in reduction of her college education.   E. obtained a so-called Stafford Loan which provides for an annual loan amount of $5,475.   One-half of the loan amount (which was paid in two payments of $1,742 and $995) was applied in reduction of E.'s fall 2011 semester costs.

Without torturing the language of the agreement, the court finds the fair reading thereof requires the loan amount be applied in reduction of the net amount of E.'s fall semester costs.   That does not mean, however, that E. should be required to pay the loan upon maturity.   The court finds the agreement of the parties clearly intended that they bear the entirety of the costs (this is borne out by the provision in the agreement that provides “[a]ny money received by either child directly in the form of gifts or through her employment, shall remain her property and shall not be used to offset funds” required to be paid by the parties).   Accordingly, at such time as E. graduates from college, or at such sooner time as the loans become payable, each party is ordered to pay one-half of the loans obtained by E. to the extent the loan amounts were applied in reduction of the excess of the college expenses above the total of the UCONN cap and the grant(s) E. receives.   Each party may chose to pay the entirety of their obligation in a lump sum or by making monthly payments to the extent permitted by the holder of the loan, provided that each party that chooses to pay overtime shall be solely liable for the cost of paying the loan over time, i.e., they shall be responsible for all interest and fees that accrue and are payable as a result of the deferment in payment.   Each party shall indemnify and hold the other harmless from any cost, liability, interest, fee or late charges that may accrue due to the failure of a party to pay his/her one-half of such loan(s).

So, the amount that would have been payable by the parties for the fall 2011 semester without the Stafford Loan proceeds was $4,005.   By applying against that amount the $2,737 attributable to the fall 2011 Stafford Loan, a balance of $1,268 is left.   The defendant is responsible for one-half of that amount, or $634 (the court has rounded up) for the fall 2011 semester.   She is ordered to pay said sum within fifteen days of the date of this memorandum.

As to the spring semester, the plaintiff testified that the fees and charges were the same and the defendant did not contradict the testimony.   He testified further that the fees and costs for the spring semester have been paid in full.   The court finds, however, that it is certainly more likely than not that there was some minor variance in the amount paid—at least in the amount of the books E. purchased if not otherwise.

The court, accordingly, orders the plaintiff to produce to the defendant a copy of a bill or invoice from Bentley outlining the total amount of tuition, fees, room and board charged for the semester and showing the deductions therefrom of the UCONN cap, the amount of the Bentley grant and the Stafford Loan. To that amount the costs of the books for E. shall be added and the plaintiff shall provide a copy of invoices for the books so purchased.   The defendant shall owe the plaintiff one-half of the amount so determined and she is ordered to pay the same to the defendant within fifteen days after receipt of the invoice and a statement from the plaintiff showing the aforesaid computations.

The court in its equitable and remedial powers orders the following mechanism for the determination and payment of future costs and fees of E.'s post-majority education:

At such time as an invoice or statement can be obtained from Bentley (or another institution in the event E. transfers) which sets forth (i) all charges for room, board, tuition, dues, fees and registration costs and (ii) the application in reduction thereof of the Bentley grant for so long as E. continues to receive the same, and a reduction for any Stafford or other loan obtained by E., the plaintiff shall deliver a copy thereof to the defendant (the net amount so determined shall be defined as the Net Tuition Amount).   Along with a statement, showing the Net Tuition Amount, the plaintiff shall include a computation showing the difference between (y) the Net Tuition Amount and (z) one-half of the annual UCONN cap (and the amount so determined shall be the Parties' Tuition Amount).   The defendant shall be responsible for one-half of the Parties' Tuition Amount plus an amount equal to one-half of the amount expended for E.'s books.   The defendant shall pay such amount to the plaintiff within fifteen days of receipt of such statements and computations.

The court does not find the failure of the defendant to make payment to the plaintiff to be a willful violation of a court order inasmuch as there was some question as to how the Stafford loan would be applied.

The motion for contempt is denied.

The request by the plaintiff for the award of attorneys fees is denied.   Each party is ordered to bear the expense of their own attorneys fees.

SO ORDERED.

BY THE COURT,

Olear, J.

FOOTNOTES

FN1. The court sincerely hopes that the parties, in the future, can work together to agree on the amount that each owes for E.'s tuition as they are fortunate, indeed, that their daughter has obtained such a grant..  FN1. The court sincerely hopes that the parties, in the future, can work together to agree on the amount that each owes for E.'s tuition as they are fortunate, indeed, that their daughter has obtained such a grant.

Olear, Leslie I., J.