No. FA-98 0489052
June 27, 2006
MEMORANDUM OF DECISION RE MOTION TO MODIFY
This case raises the question of whether the court may modify the postmajority educational support order in the parties' dissolution judgment, which predates General Statutes § 46b-56c. While this court has subject matter jurisdiction over the motion to modify which raises this issue, the agreement entered into by the parties and incorporated within this dissolution judgment does not grant the court authority to modify this postmajority educational support order.
On February 9, 1999 the parties divorced, after more than 19 years of marriage. They had two children, Ashley (now almost 19 years of age) and Thomas (now 15 years of age). A marital separation agreement was executed on the date of the divorce and incorporated by reference into the judgment. That agreement and judgment provided for, inter alia, child support to be paid by the father to the custodial parent mother, alimony from the defendant to the plaintiff and an equal sharing by the parents of the children's post-high school education costs, which are defined in the agreement as tuition, room, board and books.
In November 2003, the father successfully obtained a post-judgment modification of the child support payments. In September 2005 the plaintiff mother, Debra Alberti, filed a Motion for Contempt, alleging that the defendant father had failed to pay his share of the daughter's tuition at Western New England College, as well as certain orthodontic expenses of the son. On October 31, the father moved for a further reduction in his child support obligation. The issues of orthodontic expenses and child support modification were resolved by a court order of January 2006 finding the father in contempt as to the former and reducing his child support obligation even further.
On November 30, 2005, the defendant, John Aliberti, also filed a motion for modification of the postmajority educational child support, seeking to eliminate his obligation. The plaintiff, Debra Aliberti, has objected to the modification on the ground that the judgment does not authorize the court to modify the postmajority educational support. The court heard argument on that question and ordered subsequent briefs, the last of which was filed March 9, 2006.
Neither counsel sought to present evidence on this issue.
With regard to current dissolutions, General Statutes § 46b-56c, enacted in 2002, gives the court authority to enter educational support orders for children who have not attained the age of twenty-three and General Statutes § 46b-56c(h) specifically provides a mechanism to modify these orders. Before the enactment of this statute, the court could not impose upon either parent an obligation to pay for their child's education once the child reached the age of majority.
General Statutes § 46b-56c(a) provides: "For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate no later than the date on which the child attains twenty-three years of age."
General Statutes § 46b-56c(h) provides: "On 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."
Indeed, prior to 1977, agreements between the parties to provide for postmajority educational support were not enforceable in the context of a dissolution postjudgment contempt proceeding. Hirtle v. Hirtle, 217 Conn. 394, 399, 586 A.2d 578 (1991). After the enactment of Public Act 77-488, amending the predecessor to General Statutes § 46b-66, such an agreement could be enforced by a post-dissolution motion. But not until P.A. 01-135 added section (b) to § 46b-66 was the court vested with automatic authority to modify an agreement providing for postmajority support. This agreement was entered into and judgment issued incorporating it, in 1999.
General Statutes § 46b-66 provides, in part: "If the agreement is in writing and provides for the . . . education . . . of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable . . . (b) Agreements providing for the . . . education . . . 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."
Prior to 2001, our appellate courts discussed the issue of a court's ability to modify postmajority support payments in the context of jurisdiction. A court was either deemed to have jurisdiction or to lack jurisdiction to modify such an order, depending upon whether a written agreement existed allowing the court to so modify. See Albrecht v. Albrecht, 19 Conn.App. 146, 562 A.2d 528 (1989); Hirtle v. Hirtle, supra, 217 Conn. 394; Miner v. Miner, 48 Conn.App. 409, 709 A.2d 605 (1998). O'Bryan v. O'Bryan, 67 Conn.App. 51, 54, 787 A.2d 15 (2001), aff'd, 262 Conn. 335, 813 A.2d 1001 (2003) departed from that analytical framework, distinguishing the jurisdiction to determine the controversy from the ability to grant the requested modification. The distinction between the court's jurisdiction and authority to act regarding postmajority support was confirmed in Fusco v. Fusco, 266 Conn. 649, 835 A.2d 6 (2003). In Fusco, the parties divorced in 1986. At the time, the defendant voluntarily agreed to pay postmajority child support. The defendant thereafter sought a modification of his obligation. The trial court found that it had no subject matter jurisdiction to modify the parties' agreement absent written permission to do so. The Connecticut Supreme Court determined that the issue was not whether the court had subject matter jurisdiction, which it did, but whether the court had the authority to act. The Supreme Court adopted the reasoning of the Appellate Court in O'Bryan which "noted the distinction between a trial court's jurisdiction and its authority to act under a particular statute . . . It concluded that General Statutes § 46b-1, which provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in family relations matters . . . provides . . . the trial court with subject matter jurisdiction over motions for postmajority child support modification." Fusco v. Fusco, supra, 266 Conn. 653-54. Both parties concede that this court has subject matter jurisdiction to hear this case.
The determinative question before the court is whether, in the present case, it has the authority to act. The movant defendant takes a position that "so long as the decree does not preclude modification of the educational support provisions . . . then the court has the authority to act with regard to defendant's motion to modify." He argues that the defendant should be allowed to modify because the language does not preclude modification. The plaintiff does not argue that the agreement explicitly precludes modification but rather that the lack of preclusive language is not enough to grant the court the authority to act.
The defendant apparently relies on two cases, Barnard v. Barnard, 214 Conn. 99, 570 A.2d 690 (1990), and Fusco v. Fusco, supra, 266 Conn. 649, for the proposition that where there is no language precluding any modification, this court should allow such modification. In Barnard, the separation agreement stated that "[i]n the event that the parties cannot agree upon the Husband's obligations or abilities under Article III, either party may petition the Superior Court . . ." (Emphasis added; internal quotation marks omitted.) Id., 115. Based on this language, the court therein held that "the defendant's obligations . . . are subject to modification . . ." Id., 116. While the agreement in Barnard may not have expressly precluded modification, the court found the agreement allowed for modification because the parties were able to petition the court. In other words, the court found an implicit authority in the agreement permitting a modification of the agreement.
In Fusco v. Fusco, supra, 266 Conn. 651, the separation agreement provided: "[t]he defendant will pay to the plaintiff the sum of One Hundred Fifty ($150.00) Dollars per week alimony and Forty ($40.00) Dollars per week child support . . . Said alimony payment shall continue until the death or remarriage of the plaintiff. In the event the plaintiff remarries, the defendant's obligation to pay the existing loan[s] . . . shall also cease. However, the weekly amount of child support shall be increased to at least One Hundred ($100.00) Dollars per week payable on the same basis as set forth above. This amount may not be modified downward, however, this agreement will not preclude the plaintiff from returning to court to seek an increase in the weekly child support order, the parties hereto agreeing that said amount is the minimum sum necessary to support the child. Any amounts payable as child support shall continue until the death or marriage of the child." (Internal quotation marks omitted.)
The trial court modified the order of child support from $40 to $200. Thereafter, the defendant sought to have the child support order modified downward. The trial court held that, absent a written agreement to modify, the court could not modify the $200 award. In reversing the trial court, the Connecticut Supreme Court decided that the language of the agreement gave the court the authority to modify downward from the $200 order, so long as the court did not modify below the $40 floor (if the plaintiff did not remarry) or the $100 floor (if the plaintiff did remarry). In other words, the court construed the separation agreement such that a modification to increase support based on financial circumstances implicitly included the authority to decrease the modification based on financial circumstances.
The lack of preclusive language was also addressed in Miner v. Miner, supra, 48 Conn.App. 409. Therein, the defendant argued that since "the agreement is silent as to any conditions on which it may be modified, then General Statutes §§ 46b-66 and 46b-86 provide continuing jurisdiction for the court to open and modify postmajority support." Id., 411-12. The defendant relied on language in Barnard that suggested that agreements "can be modified by a court order only if the agreement so incorporated does not preclude modification." The Miner court, however, explained that the cited language was "dictum and not the holding of the Barnard case." Id., 413. In deciding against the defendant, the court held that it cannot "modify the written agreement incorporated in the dissolution decree as it pertains to postmajority support and education without a written agreement signed by both parties giving the court the authority to modify the agreement . . ." Id., 418.
Thus the absence of any preclusive language in the agreement is not an indication that the court has authority to modify the educational support agreement. This court's authority to act with regard to the requested modification is solely dependant upon whether the parties have agreed, in writing, to allow modification of the separation agreement by the court. "Connecticut courts repeatedly have held that, pursuant to § 46b-66, a prerequisite to a court's modification of postmajority support is a written agreement providing for modification by the court, whether it is contained in a separation agreement that is then incorporated into the judgment of dissolution or exists as a separate agreement." (Internal quotation marks omitted.) Fusco v. Fusco, supra, 266 Conn. 654.
Since "[a] judgment rendered in accordance with such a stipulation is to be regarded and construed as a contract," id. (internal quotation marks omitted), this court must look to the language of the agreement to determine if modification by the court is allowed under the parties' agreement. "A contract is to be construed as a whole and all relevant provisions will be considered together . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties . . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used This is so where the parties have their agreement in writing . . . In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that 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. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Citations omitted; internal quotation marks omitted.) O'Bryan v. O'Bryan, supra, 67 Conn.App. 55-56.
The defendant asserts that the court is authorized to modify paragraph four of the agreement, which sets forth the post-high school educational obligations of each parent, by paragraph sixteen of that agreement. The plaintiff counters that paragraph sixteen is mere boiler plate for the purpose of automatically incorporating judicial orders into the agreement and does not authorize modification of paragraph four.
Paragraph four provides: "Education: A. Husband and wife shall share equally all costs and expenses of the children's post-high school education. B. The cost of said post-high school education shall be defined as the cost of the tuition, room, board and books. C. The plaintiff and defendant understand that in the absence of a written agreement between them providing for the payment by either of them for the education (and/or support) of their children beyond the age of eighteen (18) years, the Court would have no authority to order such a payment or payments. Furthermore, the plaintiff and defendant understand that because they are entering into such a written agreement, the Court will have authority to enforce its terms as an Order of the Court." It is noteworthy that paragraph four not only provides the definition and apportionment of post-high school educational expenses, it also explicitly recognizes that the court only has authority in this area by reason of the parties granting it and that "the parties understand that because they are entering such a written agreement, the Court will have authority to enforce its terms as an Order of the Court." (Emphasis added.)
Paragraph sixteen entitled "Modification or waiver," provides in relevant part: "In the event a court of competent jurisdiction shall modify the obligations and/or rights of the parties as contained in this Agreement, so too, automatically, shall this Agreement be modified, without the necessity of a formally executed agreement to that effect. In any other event, a modification or waiver of any terms of this Agreement shall be effective only if made in writing and executed with the same formality as the Agreement itself or by order of any Court having jurisdiction to modify this Agreement."
In both Barnard and Fusco, the court held that the written language implicitly authorized the modification. In the present case, however, the defendant has not demonstrated same. In the written agreement of these parties there is an absence of explicit or implicit authority granted to the court to modify the agreement.
Defendant, father relies on paragraph sixteen of the agreement as authorizing the modification. He maintains that the language contained in paragraph sixteen gives the court the authority to modify the educational support agreement, which is detailed in paragraph four. This court disagrees.
First, the parties explicitly stated in paragraph four their understanding of the court's authority to act by providing that "the Court will have authority to enforce its terms as an Order of the Court." (Emphasis added.) Although the agreement and divorce were subsequent to Miner, the parties did not explicitly provide for modification, just for enforcement. Had the parties intended for the court to also have the authority to modify the educational support order, they could have easily so provided. Instead, they expressly delineated the court's authority to be that of only acting to "enforce" the terms.
Second, paragraph sixteen addresses modification in two situations: (1) where the court makes a modification of which it is of "competent jurisdiction" to do so, regardless of the parties' agreement and (2) where the parties agree to the modification. In the first situation, if the court orders a modification, the contract shall also incorporate the modification. Under the judgment, the court retained as a matter of law, the power to modify various portions of the judgment including, inter alia, alimony, child support and parenting issues. In the second situation, if the parties both want to modify the agreement, they must do so in writing in the same manner as the original agreement.
If the first part of paragraph sixteen were interpreted to mean that the court can modify any part of the agreement, then the second part of the paragraph is rendered superfluous. In other words, either party could seek a modification of any provision at any time without written agreement by the other party. In effect, the provision, "a modification or waiver of any of the terms of this Agreement shall be effective only if made in writing . . ." would be extraneous. "Parties generally do not insert meaningless provisions in their agreements and therefore every provision must be given effect if reasonably possible." (Internal quotation marks omitted.) Barnard v. Barnard, supra, 214 Conn. 99, 116.
O'Bryan v. O'Bryan, supra, 67 Conn.App. 51, is instructive in interpreting the combined effects of paragraphs four and sixteen of these parties' agreement. In O'Bryan, the parties divorced in October 1992. The separation agreement, which was incorporated into the judgment, provided that the husband would pay child support until the children reached the age of twenty-seven and twenty-one, respectively. In April 2000 the trial court modified his obligation to pay postmajority child support. The trial court relied on the following provision as authority for the modification:
In the event that a decree dissolving the marriage of the parties hereto, or a decree of divorce between the parties hereto, shall be entered in any court of competent jurisdiction, a subsequent modification by any court of competent jurisdiction of such decree shall, to the extent that it varies the terms of this agreement be deemed to amend this agreement in accordance with the terms of such modification.
The wife appealed, arguing that the court did not have authority to modify the agreement as to postmajority child support because the agreement specified that " [t]he Husband shall pay to the Wife as child support . . ." (Emphasis in original; internal quotation marks omitted.) Id., 56. The Appellate Court held that the trial court had no authority to modify the postmajority child support. The Appellate Court found that to use the aforesaid contract provision to authorize court modifications of postmajority child support would render meaningless another provision, which provided that "a modification . . . shall be effective only if made in writing and executed with the same formality as this agreement." (Internal quotation marks omitted.) Id., 57.
In summary, the first portion of paragraph sixteen does not confer upon the court the authority to judicially modify the agreement but merely acts to conform the agreement to the judgment if the court exercises its legal authority to modify other portions of the judgment, such as alimony and traditional child support. The second portion of paragraph sixteen sets forth the mechanism for the parties to modify the contract by mutual agreement. And paragraph four contains no authority for the court to modify the judgment as to the postmajority educational support. The court is without authority to modify the defendant's obligation to contribute to his childrens' postmajority educational expenses. Motion #114 is DENIED.