Opinion
No. FA90 027 35 54 S
December 31, 2007
MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION #135
Plaintiff's motion to terminate child support, dated June 20, 2007, has been withdrawn and plaintiff has proceeded in his June 9, 2006 motion seeking to terminate his obligation for child support claiming, among other things, that the agreement in § 5.2 refers only to minor children and does not reference the extension provided for in §§ 5.4 and 5.5. Plaintiff seeks in the alternative that if the child support were to continue that pursuant to §§ 5.4 and 5.5 the child support for Michael and Lawrence be terminated.
The issues presented are: (1) whether child support can be terminated as to all children because the separation agreement requires support for minor children only; and (2) whether, in the alternative, the child support can be modified and made retroactive as to two postmajority children who have reached the age of 23. The court hereby orders continued child support for the youngest son, but make retroactive modifications to the support order to reflect that the older two sons have reached majority age, effective as of June 9, 2006, the date of the filing of the motion.
On December 20, 1991, a decree of dissolution was rendered dissolving the marriage between the plaintiff Lawrence Castelot, and the defendant Linda Castelot and which incorporated by reference the terms of the separation agreement. The agreement included, inter alia, provisions for child support and education of their three minor children, Lawrence Castelot, born on July 31, 1982, Michael Castelot, born on March 9, 1984 and Eric Castelot, born on February 5, 1988. The agreement specifically provided for child support of $415 per week.
In June 1999 the plaintiff filed two motions for modification of child supped, alleging, at that time a substantial change in circumstances. Those motions were denied. On June 9, 2006, the plaintiff again filed a motion for modification postjudgment, which would effectively terminate child support with respect to his children who had reached the age of majority. Therein, the plaintiff alleges that child support should be terminated because the separation agreement expressly terminates support once a child is no longer a minor, that is, eighteen years old. Additionally, the plaintiff claims that the agreement provides for support to end when the child no longer resides with the defendant, and instead lives with the plaintiff. The plaintiff moves to have child support terminated with respect to the two older children as of the date of their graduation from college, and that the modification be effective as of the date of each son's graduation from college or made retroactive to the date of filing of his June 9, 2006 motion.
This issue was not briefed by the plaintiff and therefore, this court will not address it here.
On June 20, 2007, the plaintiff filed a motion to terminate child support. A hearing was held on September 25, 2007, at which time the motion to terminate child support was withdrawn, leaving the June 9, 2006 motion for modification on the calendar. On October 9, 2007, the plaintiff filed a memorandum of law in support of his motion for modification, postjudgment. On October 23, 2007, the defendant filed a memorandum of law in opposition to the motion to terminate child support postjudgment. On October 29, 2007, the plaintiff filed a rebuttal brief.
The motion to terminate was filed when the youngest son moved in with the plaintiff father. At the hearing, according to the transcript, the plaintiff withdrew that motion, as the son had returned to live with the defendant-mother.
"The jurisdiction of the Superior Court to dissolve marriages and to make and enforce support orders incidental to divorce decrees, derives from statutory authority . . . The jurisdiction of the Superior Court to make orders of child support pursuant to § 46b-56 extends only to minor children. Prior to the enactment of Public Acts 1977, No. 77-481 § 1, amending General Statutes § 46b-66, the Superior Court lacked the power to enforce postmajority support orders through contempt proceedings, even when the parties had stipulated to such an order." (Citation omitted.) Albrecht v. Albrecht, 19 Conn.App. 146, 153-54, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). "[P]ursuant to § 46b-66, as amended, written agreements for the support of adult children may be incorporated by reference into divorce decree or may be the subject of orders of the court and are enforceable through contempt procedures. Absent, however, a written agreement by the parties, the court does not have jurisdiction to order payment of child support beyond the age of majority and may not enforce such an order." Id., 154-55.
"Although General Statutes § 46b-86(a) confers authority upon the Superior Court to modify `any final order' for the payment of support, that authority must be read in conjunction with the jurisdictional limitations imposed of § 46b-66 . . . [T]he same jurisdictional rules apply to the incorporation of an order for postmajority support in the original dissolution proceedings as to a subsequent order modifying postmajority support. In both cases, § 46b-66 requires a written agreement of the parties." (Citation omitted.) Hirtle v. Hirtle, 217 Conn. 394, 400, 586 A.2d 578 (1991). Thus "[t]he court cannot, without the consent of both parents, alter a voluntary obligation undertaken by a parent beyond his or her legal obligation." Albrecht v. Albrecht, supra, 19 Conn.App. 157. Accordingly, "a written agreement is a jurisdictional prerequisite to the valid modification of an order for postmajority support." Hirtle v. Hirtle, supra, 217 Conn. 401.
Where the separation agreement of the parties is "incorporated . . . into the dissolution [decree], [a] judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract . . . Accordingly, [o]ur resolution of the [parties'][c]aims are] guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined 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 . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citations omitted; internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999).
It is commonly understood that a marital dissolution agreement and its incorporated child support provisions are construed as a contract. Moreover, these dissolution agreements are frequently litigated on account of ambiguous language. In the present case, the written separation agreement is controlling, and it is the language of that agreement that forms the basis for the plaintiff's motion. Specifically, the plaintiff argues that the term "minor," as used in the agreement for support purposes, refers to children under the age of eighteen and, therefore, allows the plaintiff to terminate his support obligation as to all three children.
"We note first the applicable standard of review. Resolution of each of the claims raised by the plaintiff turns on an interpretation of the educational support provision in the parties' separation agreement. [I]t is familiar law that a marital dissolution agreement is a contract . . . Thus, in reviewing it, `we are guided by the law that the interpretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous . . . When the language of the agreement is clear and unambiguous, its meaning is a question of law . . . When the agreement at issue is ambiguous, however, its meaning is a question of fact, and the [trial] court's interpretation thereof will not be disturbed on appeal unless it is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Histen v. Histen, 98 Conn.App. 729, 732-33, 911 A.2d 348 (2006).
"A contract is unambiguous when its language is clear and conveys a definite and precise intent. The court will not torture words to impart ambiguity where 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." (Citations omitted; internal quotation marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002). "[A] contract is ambiguous if the intent of the parties is not clear and certain from [t]he language of the contract itself . . . [A]ny ambiguity in a contract must emanate from the language used by the parties . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous." (Internal quotation marks omitted.) B D Associates, Inc. v. Russell, 73 Conn.App. 66, 71, 807 A.2d 1001 (2002).
The law requires that the written agreement explicitly allow for modification and because that agreement amounts to a contract, it is imperative to review the language of the agreement in this case. The separation agreement provides in relevant part: "Article 5 Child Support and Education. ¶ 5.1 The parties hereto recognize the desire and need of providing a proper education for the children and agree to consult with each other and with said children regarding attendance at colleges. ¶ 5.2 The Husband shall pay to the Wife the sum of $415 per week as support for the minor children. Said sum is to be payable on each Friday. ¶ 5.3 As long as the Husband is required to make payments for child support to the Wife pursuant to paragraph 5.2, the payments shall be subject to modification annually . . . ¶ 5.4 The parties agree to pay the tuition and reasonable room and board for each child to attend college for a total of four years of college education to the best of their respective financial abilities. If either party claims inability to pay such expenses, he or she shall provide copies of tax returns for the previous five years to the other as well as current financial information. If either party shall be found to be unable to make any portion of the required payments, that party shall cooperate to the best of his or her ability with all financial aid and scholership [sic] applications necessary to allow the child to attend college. The provisions of this article shall not continue beyond each child's 23rd birthday, nor continue after an event of emancipation shall occur or be deemed to have occurred as defined in Section 5.5. below. References to `college' in this article shall include a college, university, trade school or other institution of higher learning."
It is evident that the agreement does, in fact, allow for modification of the order. It is not clear, however, whether the parties intended for child support to terminate at eighteen. First, the plaintiff argues that the defendant was the drafter of the contract, and if the term "minor" is ambiguous, it should be construed against her. The defendant counters that the plaintiff was equally involved in drafting the agreement, evinced from the fact that his attorney's stationary was used for the agreement. Consequently, neither side concedes to the other's claim. In Behrns v. Behrns, 102 Conn.App. 96, 924 A.2d 883 (2007) a case where the identity of the drafter was not a conceded matter, the trial court erroneously took as a stipulated fact that the defendant drafted the separation agreement and believed ambiguities should be construed against him. Id., 99. In reversing the trial court, the Appellate Court stated: "Our review of the record reveals that the defendant never conceded the issue of who drafted the agreement. Under these circumstances, it was clearly erroneous for the court to conclude that the identity of the drafter was undisputed and to construe the agreement against the defendant on the basis of this determination." Id., 100. This court faces the same predicament here, as both parties disagree about who actually drafted the agreement. As it is not undisputed, this court will not engage in a contra proferentem argument.
The rule of contra proferentem applies to construe ambiguities in a contract "against the party who has drafted the contract." Somers v. Busch, 283 Conn. 396, 405 n. 10, 927 A.2d 832 (2007). "Courts follow the rule of contra proferentem because `[t]he party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests . . . A further, related rationale for the rule is that [s]ince one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter.'" Montoya v. Montoya, 280 Conn. 605, 616, 909 A.2d 947 (2006).
To ascertain the intent of the parties, this court will consider the language of the agreement, the use of the term "minor," and the prior behavior of both parties. Arguably, the term "minor," as it is not defined, is ambiguous in the context of the agreement. While "minor" may have a commonly understood definition in society, it becomes blurred when it is coupled with postmajority provisions, as is the case here. Consequently, the court must look to the purpose of the parties when making the agreement. Courts have considered what to do in situations such as the one in the present case, where prior behavior and additional provisions may have contravened the ordinary meaning. Moreover, it is common for separation agreements to use the term "minor" in reference to support payments, yet, within the same document, provide for binding postmajority educational payments. For example, in Reininger v. Reininger, 49 Conn.Sup. 238, 871 A.2d 472 (2005), the wife believed child support was to continue through college if the son was enrolled, while the father believed that formal support ended upon the child reaching the age of majority. Id., 239-40. The separation agreement called for support only for minor children, but also stated that "[t]he Husband further agrees to continue support payments for said minor child beyond the age of majority of eighteen (18) years so long as the minor child is a full-time student. [I would add the rest of the quote to the separation agreement: In addition, the parties agree to pay on a proportionate basis for tuition and room and board at an accredited university so long as the child is less that the age of twenty-three (23) years." Id., 240. Based on this provision as construed by the trial court, it ordered in the judgment "that the Defendant agrees to continue support payments for said minor child beyond the age of majority of eighteen (18) years so long as the minor child is a full-time student and less than 23 years of age." Id. The Reininger court agreed that "there appears to be a conflict between the language of the separation agreement and the language in the judgment" and went on to examine "the transcript of the dissolution hearing to see whether the parties testified as to their intent regarding this issue." Id. The Reininger court concluded that the wife believed the agreement to include postmajority support. The court further concluded that "it would be inclined to agree with the [husband] that he believed the child support payments would end upon [the child's] graduation from high school, however, the transcript reveale[d] that there was specific questioning of the [wife], as to this issue and the [husband], through his attorney, could have clarified any ambiguity as to this issue." Id. The court ordered "child support payments . . . to continue postmajority as long as [the child] was enrolled as a full time student in an accredited college and under twenty-three years of age . . ." Id.
"[T]he intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . 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." (Internal quotation marks omitted.) Monette v. Monette, 102 Conn.App. 1, 17, 924 A.2d 894 (2007).
Like Reininger, the court in the present case acknowledges that the common meaning of "minor" when read together with the language of § 5.2 of the agreement would permit the termination of strict custody payments when the children reached the age of eighteen. The evidence of the parties' intent, as in Reininger, however, suggests that the husband agreed to continue to pay child support through the college years. This court, unlike in Reininger, may avail itself of direct evidence to demonstrate the plaintiff's intent, rather than only the absence of an objection by the plaintiff's attorney. First, the plaintiff played an active role in writing the separation agreement. The provisions calling for child support, postmajority support and emancipation all fall under one umbrella, "Child Support and Education." Considering that the parties chose to include the option to modify support within this section, and deference is given to the intent of the parties, it appears that postmajority support and child support are considered one in the same, governed by the same rules. Moreover, the plaintiff's prior behavior, paying child support throughout the elder sons' college years, suggests that the plaintiff interpreted the agreement to group support and education together. Because the other two children were provided with support throughout their college years, without objection from the plaintiff, his intent appears to have been to support the children throughout college. Support should continue for Eric Castelot as long as he is enrolled full-time in an accredited college and under the age of twenty-three.
In addition, the plaintiff is seeking to retroactively terminate the support that was paid for the two elder children to the dates of their respective graduations from college, or retroactive to June 9, 2006, the date of the filing of the motion before the court. Pursuant to General Statutes §§ 46b-66 and 46b-86, modification of child support can be made retroactive to the date of the filing of the motion, and case law has applied this standard. "Section 46b-66(b) provides for modification of postmajority educational support orders to the same extent as any other provision of any order or decree in accordance with section 46b-86. Section 46b-86(a), in turn, is entitled `Modification of alimony or support orders or judgments.' It provides, in essence, for modification `upon a showing of a substantial change in the circumstances of either party . . .'" (Internal quotation marks omitted.) Heise v. D'Amico, Superior Court, judicial district of Tolland at Rockville, Docket No. FA 98 0067946 (October 16, 2007, Schuman, J.) [ 44 Conn. L. Rptr. 233].
General Statutes § 46b-86 provides, in relevant part: "No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to [General Statutes] section 52-20."
While Connecticut courts have, most commonly, made support orders retroactive in situations where one party is behind in payments, and a retroactive modification is intended to cure a delinquency, it is within the parameters of the provision to award a retroactive modification in instances such as the present one. In Heise v. D'Amico, supra, Superior Court, Docket No FA 98 0067946, the plaintiff ex-wife filed a motion to modify alimony and the college cost provisions. The court looked to the language of General Statutes § 46c-56(c), which provides that "`[o]n 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.' Subsection (k), however, states that `[t]he 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.'" Heise v. D'Amico, supra, Superior Court, Docket No FA 98 0067946. Likewise, § 46b-66 provides, in relevant part: "Agreements providing for the care, education, maintenance or support of a child beyond the age of eighteen entered into on or after July 1, 2001, shall be modifiable to the same extent as any other provision of any order or decree in accordance with section 46b-86." In Heise, there was a postjudgment agreement at issue, and consequently, the court weighed the above mentioned statutes and determined that the postjudgment agreement was modifiable under § 46b-66 because it was executed in 2006. Examining the Heise rationale and the statutory language, the educational support provisions in the present case would be subject to modification had the agreement been entered into after October 1, 2002. The only agreement here is the December 1991 decree of dissolution with its incorporated separation agreement. Consequently, the relevant provisions are not modifiable.
See Taylor v. Taylor, Superior Court, judicial district of New Haven, Docket No. FA 00 0436771 (July 31, 2007, Frazzini, J.), where the plaintiff sought a finding of contempt because of the defendant's delinquency in paying child support. In return, the defendant who was in arrears, moved for modification of his child support payments and asked that it be made retroactive to the date the motion was filed. The court granted the retroactive modification.
For the foregoing reasons, child support for Eric Castelot continues as long as he enrolls as a full-time student in an accredited college and is under the age of twenty-three. As to Lawrence Castelot, who turned twenty-three prior to the filing of this motion on June 9, 2006, the support payments are terminated retroactive to June 9, 2006. As to Michael Castelot, who has turned twenty-three subsequent to the filing of this motion, the child support are retroactive to the date he became twenty-three.