Behrns
v.
Behrns

Connecticut Superior Court Judicial District of Fairfield at BridgeportSep 14, 2005
2005 Ct. Sup. 12975 (Conn. Super. Ct. 2005)

No. FA86 022 98 34 S

September 14, 2005


MEMORANDUM OF DECISION


HOWARD T. OWENS, JUDGE TRIAL REFEREE.

On November 12, 1986 the marriage of the parties was dissolved and a written separation agreement was incorporated in the judgment. This Court on August 8, 2005 did hear testimony, examine evidence, and listen to argument. Plaintiff claims that the defendant is in contempt for failure to pay alimony and support. All obligation for alimony or support expired on January 1, 1997. The Court at the time of dissolution required defendant to pay plaintiff the sum of $815.00 as alimony every other week. In addition defendant was required to pay $325.00 every other week as support. The judgment provided that the initial support would be reduced to $175.00 every other week upon the minor child reaching the age of majority.

Pursuant to the Appellate Court's decision in Behrns v. Behrns, 80 Conn.App. 206 (2003) this Court is required to determine the meaning and input of ambiguous language contained in the dissolution agreement.

The defendant claims that upon his forced resignation from GTE in July of 1996 he understood paragraph 5.3 of the separation agreement to allow him, without resort to court to unilaterally reduce his alimony to $5.00. The defendant interpreted the clause in 5.3, "whichever is less," as referring to the resultant payment after application of the formula; and that his interpretation permitted him to make no alimony and support payments when he lost salary and wage income, and that he was not required to first seek a modification. Pursuant to paragraph 5.4 of the parties' agreement, as "of the 1st day of January 1997, any payments from husband to the wife, under the provisions of this Article V shall cease, and he will forever be freed from any liability to pay alimony or support to the wife."

The plaintiff testified that she understood the questioned portion of the agreement to obligate the defendant to continue paying child support and alimony in amounts reduced only by the percentage change in his annual salary and wages or the percentage change in the CPI index, whichever percentage change was less.

Not incidentally, the plaintiff also testified that the formula presented in 5.7 of the agreement — dealing with reductions in alimony paid to the wife based on her earnings — clearly contemplated a scenario where the "monthly payment shall be reduced to zero." The language of 5.3 did not contemplate this same possible scenario attributed to it by the defendant.

The separation agreement § 5.3 permitted the wife's unallocated alimony and support payments to "increase by an amount equal to the cost of living as measured by the Consumer Price Index or the percentage yearly increase in the husband's salary or business income, whichever is less . . ."

At the hearing, the defendant acknowledged that, pursuant to this language, while the plaintiff would be entitled to some increase, she would not receive more than the CPI adjustment in the event he was promoted and there was a substantial increase in his income.

The defendant, as reflected in the various subsequent versions of 5.1 (now 5.3) and in the final agreement, was desirous of a quid pro quo, allowing for certain decreases to be similarly adjusted. The plaintiff accepted this version in light of her reasonable interpretation that she would be similarly buffered from any dramatic decrease by application of the "whichever is less" language.

The strained interpretation that the defendant placed on 5.3 — first conveyed to the plaintiff in late 1993 via the statement to her "I don't owe you anything" was never the interpretation of the plaintiff or, it is submitted, was it the interpretation the defendant until it served his purposes.

The defendant testified that the one and only time he performed any calculations pursuant to 5.3 and that were shared with the plaintiff was the approach of the first anniversary of the parties divorce, i.e., October 31, 1987. He recorded his calculations on a page from the Wall Street Journal and presented them to the plaintiff for her review.

An examination of this document reveals that the defendant recited the "consumer price index change" at 4.6%, and his "salary change" at .5%. The current support order at this time was $990.00. The defendant adjusted his bi-weekly support to $994.95 (or $995.00) as both he and the plaintiff testified, by applying the " lessor of CPI or salary change." This is what both parties at the time intended to be the effect, i.e., to minimize the change in the defendant's alimony/support obligations. The revised alimony/support obligation as computed by the defendant, was acceptable to both parties. The defendant performed no further calculations in the years that followed and continued making bi-weekly payments of $1,990.00.

Almost three years after the defendant fell back on the interpretation he ultimately presented to this court, i.e., that it's the lesser of the resulting number after application of the formula, not application of the "lesser of CPI or salary change."

The defendant now seeks to attach to 5.3, and refuting his claim that the plaintiff acceded to his non-payment is his Chapter 7 bankruptcy filing in Vermont in 1992.

This filing was commenced in July of 1992, two-years from the date of his termination at GTE. Under "Schedule J — Current Expenditures of Individual Debtors," the defendant asserts, "alimony, maintenance, and support paid to others: 1,990.00. This is the precise amount calculated by the defendant when he adjusted his alimony/support obligations for the only time in 1987, i.e., bi-weekly payments of $995.00. He manifested his interpretation in this filing. The Vermont filing evidences an acknowledgment by the defendant that his alimony/support obligation of $1,990.00 was in full force and effect.

It is well-established that statutes providing for parental support and maintenance of minor children are to be broadly construed. Jones v. Jones, 169 Conn. 207, 291 (1986). The Supreme Court has "interpreted broadly" the definition of gross income contained in the child support guidelines to include items that, in effect, increase the amount of a parent's income that is available for child support purposes. Unkelbach v. McNary, 244 Conn. 350, 360-62 (1998) (gifts from domestic partner counted in income of supporting parent).

The defendant, during the period in question, had income other than salary and wages. In his 1992 Vermont bankruptcy he asserts monthly income of $7,711.12, broken down as follows: regular income from operation of business or profession ($4,362.00); income from real property ($1,712.12); unemployment compensation ($637.00); and consulting in accounting ($1,000.00). The defendant also testified that his current wife provided him with monetary support as well.

Pursuant to the parties' divorce agreement, the source of funds to pay (alimony and child support) was not limited to the defendant's "salary and wages." While the amount to be paid would be affected by a percentage change in the defendant's salary and wages, or a percentage change in the CPI (whichever was less), the defendant had available to him other sources of income with which to pay child support. If this income is not enough to meet his alimony/support obligations, it was incumbent upon the defendant to seek a modification.

If the language of an agreement is reasonably open to two constructions, one of which would avoid violating public policy, that construction should be adopted. Bodner v. United States Automobile Association, 220 Conn. 480, 494 (1992).

It is undisputed, based on the testimony of attorney Warren Joblin and the admission made by counsel at the July 9, 2002 hearing, that defendant's attorney was the scrivener of the agreement. It is also undisputed that the "de-escalator" language that was inserted in paragraph 3 was also inserted for the benefit of the defendant.

"It is generally accepted . . . that when two or more meanings may fairly be given to language in a contract, the language is to be construed against the one who drew it; and likewise, the language of a contract is typically construed most strongly against the party whose language it is and for whose benefit it was inserted." Sturman v. Socha, 191 Conn. 1 (1983). (See also Rund v. Melillo, 63 Conn.App. 216 (2001).) "`When there is ambiguity, we must construe contractual terms against the drafter." Cameron v. Avonbridge, Inc., 3 Conn.App. 230 (1985).

To prevail in his claim of laches, the defendant is required to prove two elements. First, there must have been a delay that was inexcusable and second, the delay must have prejudiced the defendant. Lapse of time alone does not constitute laches. The delay must result in a prejudice to the defendant when he is led to change his position with respect to the matter in questions.

The "time line" as testified to by the plaintiff, attorney Joblin, and supplemented by the plaintiff's Exhibit 8 (Illinois Dept. Of Public Aid letter); Exhibit 9 (attorney Joblin's letter to attorney Reich); Exhibit 11 (motion for contempt, dated September 10, 1996); and Exhibits 13-18 (itemized billings from various counsel to Ms. Boyd) shows that the plaintiff was vigilant in her pursuit of the defendant over many years in three states — Illinois, Vermont, and Connecticut. Nor did the defendant demonstrate that any delay has proven prejudicial to him.

Equitable estoppel requires proof of two essential elements. The plaintiff must have done or said something calculated to induce the defendant to believe that certain facts existed and that the defendant changed his position in reliance on those facts incurring some injury. Union Carbide v. Danbury, 257 Conn. 865, 872-3. "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Connecticut National Bank v. Voog, 233 Conn. 352, 366-67 (1995). The plaintiff's claims of contempt and an arrearage of approximately $100,000.00 were consistent throughout the entire period in question. Any purported change in the defendant's position was unilateral on his part and was not the results of any action of the plaintiff, (see. e.g., Bozzi v. Bozzi, 177 Conn. 232 (1979)).

The defendant testified that as early as 1991 he was aware that the plaintiff was claiming that moneys were due her. The plaintiff testified that she never, directly or implicitly, forgave the defendant of his obligation to pay. Given his circumstances, the burden was on the defendant to seek modification of his alimony/support obligations.

Plaintiff claims that defendant should be found in contempt and that she should be awarded attorney fees in the amount of $45,339.85 pursuant to C.G.S. 46b-87. Defendant does not contest the reasonableness of the fees.

While the Court seriously questions defendant's bone fides and his failure to apply to the Court for relief, this is not the classic "wilful" case that this Court is usually presented with. The Court does not have to make a finding of wilful contempt in order to award attorneys fees. The record is clear that plaintiff was persistent and diligent and without a substantial investment in attorney fees her claims might well have not been aggressively pursued. C.G.S. § 46b-62 allows the Court to award counsel fees to the plaintiff. Plaintiff is clearly a disadvantaged party who is pursuing a legitimate legal claim. Dobrozy v. Dobrozy, 241 Conn. 490, 499 (1997). At this time the Court will not enter a judgment of contempt.

Pursuant to Ex. 3 offered by the plaintiff, the Court finds there is due and payable to the plaintiff the sum of $96,560 for alimony and child support and $45,339.85 in counsel fees for a total of $141,889.85. If the parties cannot resolve the issue of how said sum is to be paid the matter shall be referred to the Court.

OWENS, J.