Paul Mayer v. Susan Mayer (2013)

MEMORANDUM OF DECISION RE MOTION TO REARGUE # 125

A review of the record reveals that the parties were divorced pursuant to a divorce settlement agreement dated March 27, 2009.   The parties appeared before the undersigned on October 29, 2013, regarding the wife's motion for contempt.   The court issued a memorandum of decision dated October 31, 2013 and thereafter, the wife filed this motion to reargue dated November 5, 2013.   The parties appeared before the undersigned on November 25, 2013 to argue this motion.

In its memorandum of decision, the court made a finding of fact that “the wife withdrew $9,256 from the 529 account for the child's fall 2013 semester without the consent of the husband.”   The wife argued and the husband agreed that this finding of fact was inaccurate.   In fact, this withdrawal by the wife was done with the consent of the husband and thus was not wrongful and that sum of money need not be returned.

The second issue before the court is more difficult and was not the subject of an agreement.   In essence, the dispute revolves around the payment of post-majority educational support for the minor children and the use of two 529 accounts.

During the course of the marriage, the parties created 529 college savings accounts for their children.   The husband argued that he had contributed upwards of 55% to fund those accounts.

The divorce settlement agreement specifically and expressly obligates the husband to “contribute to the expenses for each child to attend up to a total of four full academic years at an institution of higher education ․ The husband's obligation in the fourth year for Joshua shall be $10,000 less than what husband would be required to pay in the above paragraph ․ Until husband's obligations under section 3.1 are fulfilled, husband shall maintain his existing disability insurance.   In addition, husband shall maintain all existing retirement accounts ․ Such accounts shall be available to satisfy husband's obligations under section 3.1 hereof.”   The agreement contains no such express obligations on the part of the wife.   Moreover, the agreement contains no language permitting the husband to utilize the 529 accounts for his obligations.

The agreement references the 529 accounts at paragraph 3.4 stating “529 accounts have been established for each of the children.   Neither party shall dispose of any accounts funds without the written consent of the other ․ If the funds in such accounts are not exhausted for the college or vocational expenses of the children by the time the younger child attains the age of 23, the parties shall equally share the account balances between themselves.”

The wife argues that the language and intent of the divorce settlement agreement is that the husband is obligated to pay 50% of the children's college expenses out-of-pocket and the wife may pay her share out of the 529 accounts until they are exhausted.   In other words, the wife argues that the obligation of the husband is greater than that of the wife.

The wife's argument is convincing.   There is extensive language in the divorce settlement agreement specifically and expressly obligating the husband to pay for the children's college education.   Under the husband's interpretation, all of the language in paragraph 3.1 obligating the husband to contribute to the children's college education would be meaningless.   A court cannot assume that this language was included in the agreement without any purpose.   The husband argues that the language and intent of the divorce settlement agreement is that the children's college education expenses should be paid by the 529 accounts until they are exhausted and then the parties shall pay out-of-pocket on an equal basis.   A court simply cannot “disregard the words used by the parties or revise, add to, or create a new agreement.”  Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973).   For whatever reason, in the mosaic of the financial orders crafted by the parties, the husband took on greater obligations for the children's college education than did the wife.   There was also a dispute as to the meaning and intent of paragraph 3.4 which states “neither party shall dispose of any accounts funds without the written consent of the other.”   Initially, the court construed this language to mean that neither party could utilize, withdraw or invade the account funds without the consent of the other.   After hearing reargument and reflecting on that paragraph, the court concludes that the wife may utilize, withdraw or invade the account funds for the purpose of funding the children's college educations without the consent of the husband.   The parties cannot utilize said funds for any other purpose.

ORDERS

The court orders of October 31, 2013 are vacated.   The wife's motion for contempt regarding the child support arrearage and the automobile expenses is denied.   The wife's motion for contempt regarding the college education is granted.   The wife need not repay any money to the 529 account.   The husband is ordered to pay to the wife or to the child's University;  the entirety of the spring semester tuition, fees, room and board and books out of his own funds when due.   Thereafter, for both children, for each subsequent semester the husband will pay 50% of those college expenses (subject to the UCONN cap) out of his own funds when due.   The wife may utilize the 529 accounts for those expenses.

In addition, the husband shall pay $85 to the wife within 30 days representing 50% of the college application fees which she expended.   The request for counsel fees is denied since the husband prevailed on some of the issues and on the college issue, the court is unable to find that his failure to pay those expenses was a willful violation of a clear and understandable order.

BY THE COURT

Kenneth L. Shluger, Judge

Shluger, Kenneth L., J.