Opinion
No. FA08-4013823S
July 22, 2009
MEMORANDUM OF DECISION
The above-entitled action was commenced by Application (#101.00) of the plaintiff father ("father") against the defendant mother ("mother") dated April 23, 2008, in which he seeks an order of joint custody of and visitation with the minor child Meghan McCarthy Miller, born November 10, 2003, in the District of Columbia, together with an order establishing child support and an educational support order pursuant to General Statutes § 46b-56c. The mother filed an Answer, Special Defense and Cross Complaint (#111.00) dated December 1, 2008, in which she seeks the same relief as the father, and in addition thereto, asks the court to enforce a certain "Child Support and Property Agreement" dated June 19, 2006 ("Agreement"). At the time of the birth of the child, the parties were unmarried cohabitants. The child's paternity is not an issue in this case. During the pendency of this matter, the parties executed a "Parenting Plan" dated May 6, 2009, which has been filed with the court (#134). No action is currently pending in any other jurisdiction affecting the custody of the minor child.
The use of the term "agreement" is for convenience only, and is not to be construed as a finding that the document is an enforceable contract.
The mother is 45 years old and holds a degree in marketing and communications. In July 2003, she moved to Gaithersburg, Maryland, where she resided in a home owned by the father. She was employed in the financial services industry in Chevy Chase, Maryland, where she earned approximately $100,000.00 per year, and she also did some consulting work in the same field, until March 2004, shortly after the birth of the child. The father is 43 years old and has also worked in the financial field, first with GMAC, later as a bond trader with the Royal Bank of Scotland, and is currently with Greenwich Capital. The evidence demonstrates that for every year commencing in 2003 he has earned at least $1,000,000.00 gross income. The parties carried on their romantic relationship until December 2005, when they finally separated. All the while, the father continued to support the mother and child by maintaining the home, including the mortgage, and by providing her with $5,500.00 per month and the use of a credit card. He also remained actively involved in his daughter's life as well.
The father relocated to the State of Connecticut in March 2004, due to a change in his employment. From March 2004 to June 2006, he maintained a regular relationship with the child, traveling from Connecticut to Maryland on average two to three times per month. Occasionally, the mother drove the child to Connecticut for visits with the father. In January 2006, the father proposed that the mother and child move to Connecticut, describing it as "the only solution" which would allow him to enjoy a better relationship with the child. The parties then negotiated an agreement, with some help from attorneys, which, inter alia, provided for the payment of $14,000.00 per month in support and the purchase of a house by the father. The issues in dispute revolve around the meaning and enforceability of said Agreement, which was executed by the parties on or about June 19, 2006, just prior to the mother's move to Connecticut. In fact, the evidence disclosed that the mother declined to move to Connecticut in the absence of some writing. The father ultimately acquiesced. For her part, the mother concedes that the move is in the child's best interest, and that she felt that it would prove problematic if the child viewed the father as "Uncle Daddy." Since June 2006, the mother has been living in Westport, Connecticut, with the child, in a home owned by the father. The father married a third party on September 8, 2007. The crux of this case revolves around the execution of a certain Agreement by and between the parties and its implementation to date.
By its terms, the Agreement states that it, "shall be binding by [sic] both parties and in full force and effect until a subsequent agreement (hereinafter referred to as the `Final Agreement') exhaustively detailing the custodial, child support, and property agreement is agreed to," which the parties agreed to use their "best effort" to accomplish within 30 days of signing. The mother has asked the court to enforce the terms of the Agreement, while the father asserts that it is in the nature of an agreement to agree, and, hence, is unenforceable.
The father filed a Motion to Strike, Pendente Life (#115) dated January 20, 2009, attacking the entire Answer, Special Defense and Cross Complaint. The motion was denied by the court which issued a Memorandum of Decision (#121) dated February 26, 2009. The case was then tried over the course of three days, including final argument. At the conclusion of the hearing, the court reserved jurisdiction to decide the mother's Motion for Attorneys Fees (#131.00) dated May 6, 2009, as well as the father's Motion for Sanctions (#119) dated February 13, 2009, and the mother's Objection thereto (#120) dated February 26, 2009. The court requested briefs due June 15, 2009, which time was extended by agreement, with permission of the court to June 22, 2009.
FINDINGS
The court, having taken into consideration the provisions of General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-61, 46b-62, 46b-84, 46b-171(a), and 46b-215 et seq., and having heard the testimony of the parties and having considered the evidence, including their respective financial affidavits, finds as follows:
1. That Christopher Miller and Barbara Hennelly are the father and mother of the minor child Meghan McCarthy Miller, born November 10, 2003, per an "Acknowledgment and Affirmation of Paternity" as on file (#129.10).
2. That no action is currently pending in any other jurisdiction affecting the custody of the minor child; that both parents and the minor child are residents of Connecticut, and that Connecticut is the "home state" of the minor child.
3. That the parties executed a "Parenting Plan" dated May 6, 2009, as on file with the court (#134.10), which the court finds to be in the best interest of the minor child.
4. That the parties have stipulated for the record that the net income of the father is in excess of the maximum Child Support Guidelines amount.
5. 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, in that in their proposed orders, each parent has either requested that the court to retain jurisdiction to enter an educational support order in the future or has agreed to pay for same. General Statutes § 46b-56c.
6. That the parties executed a certain document entitled "Child Support and Property Agreement" dated June 19, 2006 (Exhibit D); and that, for the reasons set forth hereinafter, the court lacks jurisdiction to enforce same, in part, and declines to exercise jurisdiction, in part.
7. That the court has reviewed the Affidavit of Richard L. Albrecht (#128.10) dated May 6, 2009, regarding attorneys fees and costs incurred by the mother in connection herewith and finds them to be fair and reasonable under all the circumstance; and that it is equitable and appropriate to award the mother attorneys fees and costs in the amount of $34,158.92. General Statutes § 46b-62.
8. That the court has considered the plaintiff's Motion for Sanctions, Pendente Life, (#119.00) dated February 13, 2009, including the argument of counsel, and finds that he was not materially hindered prevented in the presentation of his case at the time of hearing, and that under all the circumstances, while the actions of the defendant's counsel at deposition could at times be construed as obstructive, the requested sanctions would serve no good purpose.
LAW Jurisdiction:
Whether by the parties, or sua sponte by the court, "once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." Cadle Company v. D'Addario, 268 Conn. 441, 444 (2004). The Application of the father clearly falls within the ambit of General Statutes § 46b-1 and is thus considered a family relations matter. No previous orders relating to the minor child having been entered, the action was initiated by the father, who seeks to establish, inter alia, an order of custody and visitation, as well as to establish an appropriate level of child support. As such, this court looks to the provisions of General Statutes § 46b-61. Accordingly, "the court may make any order as to the custody, care, education, visitation and support of any minor child of the parties." During the course of this action, the parties entered into a Parenting Plan dated May 6, 2009, in which they resolved the principal issues of custody and visitation.
What is in dispute is the legal effect, if any, of a certain "Child Support and Property Agreement" dated June 19, 2006 (Exhibit D), in which the parties made an effort to amicably resolve issues surrounding the future support of the minor child and her residence at or about the time of the mother's move to Connecticut. The mother, by way of Special Defense and Cross Complaint, seeks enforcement of it. The Agreement contains three substantive paragraphs. The first two concern a future lump sum payment and the occupancy of the home. The third substantive paragraph is an agreement to pay child support. The court will deal with it first.
Child Support:
The third substantive paragraph of the Agreement between the parties provides that the father will pay to the mother by direct deposit the sum of $14,000.00 per month as and for child support. While there is no termination date for the payment, absent a specific agreement to the contrary, child support is payable during the minority of the child. In fact, absent such an agreement, where an order requires the payment of child support beyond the age of majority, "it is of no force and effect as a court order." Kennedy v. Kennedy, 177 Conn. 47, 52 (1979). The only exceptions being awards governed by General Statutes § 46b-56c, 46b-84(b) and (c), and 46b-215(a)(1). Thus the court could construe the Agreement as operative only during the minority of the child, and the absence of a specific date, under all the circumstances, would not be fatal.
Each parent has a duty to provide support for their minor child commensurate with their financial abilities, which duty is recognized both at Common Law and by statute. General Statutes § 46b-171(a). Moreover, the right of a child to be supported is a "direct right vesting in them." Burke v. Burke, 137 Conn. 74, 80-81 (1950). The father argues that the Agreement of the parties is not an enforceable contract in that it is an agreement to agree. This court believes that the legal duty to support one's child is so fundamental, that parents who reach an agreement regarding child support, no matter how imperfect, should be encouraged and supported in that effort. However, the fact remains that the Agreement, per se, has not been approved by any other court, and while nothing precludes this court from accepting it, this court cannot be compelled to enforce it. This is particularly so, where the minor child was not represented by counsel at the time of the execution of the Agreement. Guille v. Guille, 196 Conn. 260-64 (1985). Nevertheless, the court sees no reason why that provision of the Agreement cannot be considered by the court in arriving at an order of child support, particularly since the parties have abided by it for more than three years.
In entering an order for child support, a court must consider both General Statutes § 46b-215b and the Child Support and Arrearage Guidelines Regulations ("Guidelines"), as well as the factors set forth in General Statutes § 46b-84. In general, child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358 (2001), but where, as here, the net income of the parties is in excess of the maximum Child Support Guidelines amount, the court need not apply the presumptive minimum support amount set forth in the Guidelines. Battersby v. Battersby, 218 Conn. 467, 471-72 (1991); Benedetto v. Benedetto, 55 Conn.App. 350, 355 (1999).
For the reasons set forth above, the court declines to enforce the Agreement of the parties as it relates to the support of the minor child. Amodio v. Amodio, 247 Conn. 724, 730 (1999). However, the court has taken said Agreement into consideration, as well as the actions of the parties in connection therewith, as one of several factors used in its determination of child support.
Lump Sum:
The first substantive paragraph of the Agreement provides for a lump sum in the amount of $650,000.00 together with one-half of the appreciated value (less brokerage and transaction fees) to be payable to the mother upon the sale of 2 Devon Road, Westport, ostensibly as and for "a one time child support payment." Aside from the fact that the parties did not agree to a specific sale date, the Agreement, which is captioned "Child Support and Property Agreement," does not clearly provide that the payment is to be made for the benefit of the minor child, Rempt v. Rempt, 5 Conn.App. 85, 89 (1985), or how it would be used for her support. Wolf v. Wolf, 39 Conn.App. 162, 171 (1995). In fact, when read in conjunction with the second substantive paragraph, which provides for the occupancy of the premises prior to sale, there is a distinct possibility that the lump sum payment would be made, if at all, after the child reaches her majority.
In addition, there was no credible evidence presented at trial that would support a finding that the future lump sum was "necessary for the maintenance of the minor child." Eisenbaum v. Eisenbaum, 44 Conn.App. 605, 609 (1997). Moreover, under all the circumstances, including the father's agreement to pay $14,000.00 per month for current child support, the future lump sum is "grossly disproportionate" to what would be reasonable and necessary for the support of the minor child. Brown v. Brown, 190 Conn. 345, 348-49 (1983). The foregoing factors lead the court to the inescapable conclusion that, notwithstanding the caption, the future lump sum payment is, in fact, a property settlement under the guise of child support. The Connecticut Supreme Court has held that a court may not order child support disguised as alimony, Loughlin v. Loughlin, 280 Conn. 632, 655-56 (2006), nor may a court order alimony disguised as child support, Brown v. Brown, supra, 349. This court sees no reason why that principle should not hold true here as well.
That being said, the court was asked to determine whether or not the Agreement gives rise to rights enforceable by the mother, that is the right to receive the future lump sum payment. The question posed is simple: Does the agreement reached by and between the parties embody a "promise or set of promises for the breach of which the law gives a remedy?" If so, it is an enforceable contract. Boland v. Catalano, 202 Conn. 333, 338-39 (1987). Thus, the question is one of contract and not family law. The relief sought by the mother herein does not fall within the ambit of General Statutes § 46b-1. As such, this the court declines to take up the issue, since it lacks jurisdiction to do so. This court must exercise its jurisdiction in accordance with its statutory authority. Looking for possible provisions of the above statute that might authorize it to act, the court can find none. For instance, it is neither an action to determine the custody and visitation of children, nor a custody proceeding brought under the provisions of chapter 815p. (General Statutes § 46b-115 et seq.) In addition, since the agreement sought to be enforced was not made by "prospective spouses . . . in contemplation of marriage," by definition, it is not an action related to a prenuptial agreement. General Statutes § 46b-36b(1).
While it could be argued that the issue arises within the context of a family matter, the court believes that this fact alone is not sufficient to confer jurisdiction where it does not exist, and that the issue of property agreements between unmarried persons is best left to the Civil docket. In Dicerto v. Jones, 108 Conn.App. 184, 192 (2008), cited by the mother, which was a partition action brought by former unmarried cohabitants under General Statutes § 52-495 et seq., the Appellate Court concluded that the trial court had applied the correct standard (i.e. "balancing of the equities") and that the provisions of General Statutes § 46b-81 ("equitable distribution") in such a case were "not applicable."
ORDER
IT IS HEREBY ORDERED THAT:
1. The parties shall share joint legal custody of the minor child, and the parenting responsibilities shall be shared in accordance with a certain "Parenting Plan" dated May 6, 2009, which the court hereby approves and incorporates by reference herein as "Schedule A" and makes it part of the file.
Editor's Note: Schedule A has not been reproduced herein.
2. Commencing August 1, 2009, and monthly thereafter, the father shall pay to the mother the sum of $10,000.00 as and for child support, until such time as the child shall reach the age of eighteen years or shall be otherwise emancipated. The foregoing notwithstanding, if the child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following her graduation from high school or her nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).
3. The father shall maintain and pay for the existing health insurance (including dental coverage), or its equivalent, for the minor child so long as he shall be obligated to pay child support for that child, including post-majority support pursuant to an educational support order or a written post-majority agreement. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor child, including co-pays, shall be divided by the parties, 50% by the father and 50% by the mother. The provisions of General Statutes § 46b-84(e) shall apply.
4. Pursuant to General Statutes § 46b-84(f), as and for security for his support obligation hereunder, the father shall maintain a portion of the existing Northwestern Mutual Life Insurance policy in an amount no less than $1,000,000.00, and shall designate the mother, Barbara Hennelly, as custodian for the benefit of the minor child, Megan McCarthy Miller, as beneficiary thereof, for so long as he has an obligation to pay child support under the terms of this decree. For purposes of the enforcement of this provision, a child support order shall include an educational support order pursuant to General Statutes § 46-56c or a written agreement of the parties for post-majority educational support.
5. The father shall contribute to the necessary educational expenses of the minor child in pursuit of a bachelor's degree or four full academic years study toward same, whichever shall sooner occur, to include room, board, dues, tuition, fees, registration and application costs, as well as required text books and laboratory materials, and, in the absence of an agreement of the parties to exceed same, said expenses for the child shall not be more than the amount charged by the University of Connecticut for a full-time in-state student. Unless the parties shall otherwise agree, all payments shall be made directly to the institution. The foregoing notwithstanding, the obligation of father hereunder shall, in all events, cease when the child reaches the age of twenty-three years.
6. There having been a contested hearing at which financial matters were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).
7. The Court hereby orders an Contingent Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the child support order.
8. The defendant's Motion for Attorneys Fees (#131.00) dated May 6, 2009, is HEREBY GRANTED, and the plaintiff shall pay the sum of $34,158.92 to the firm of Cohen and Wolf, P.C. in full within thirty (30) days from the date of this order.
9. The plaintiff's Motion for Sanctions, Pendente Life (#119.00) dated February 13, 2009, having been considered by the court is HEREBY DENIED for the foregoing reasons.