No. FA 96 0712300
December 22, 2009
MEMORANDUM OF DECISION RE MOTIONS NO. 133 AND 133.01
The defendant seeks a determination of college expenses pursuant to a separation agreement entered into by the parties, dated June 16, 1997, and incorporated into the dissolution judgment, dated August 1, 1997. Cohen, J. An evidentiary hearing was held in this matter on December 18, 2009, at which time the court reserved its decision on the plaintiff's claim that the court lacked jurisdiction over the college expense provision of the judgment as it was entered prior to the enactment of legislation authorizing continuing jurisdiction and modification of educational support orders. The defendant counters that he merely seeks a determination of his responsibility for his children's college education expenses, in accordance with the judgment. The court finds that the relief sought by the defendant requires a modification of the agreement of the parties, for which the court lacks statutory authority. Therefore, the motion is denied.
Paragraph 14 of the 1997 stipulated judgment provides in relevant part, as follows: "The parties shall each be responsible for one third (1/3) of the gross college education expenses applicable to the cost of four (4) years of college education to be completed in no more than five (5) years, at an accredited college or university, incurred for the benefit of the minor children, which sum shall be limited to the cost of tuition, room, board and books. Said obligation shall terminate when each child reaches the age of twenty-four (24). Said sum shall be paid on a timely basis pursuant to the normal billing policies of whatever institution each child chooses to attend . . ." (Emphasis added.)
The defendant claims he was neither consulted in the final decision nor notified in advance that his daughter would attend High Point University, an institution of higher learning he considers academically inferior and substantially more expensive than other colleges and universities that extended offers of admission to his daughter. Although the court finds the defendant participated in the college selection process by visiting numerous campuses with his daughter and that he was informed of the decision in advance of the deposit paid to High Point, he was not consulted by the plaintiff in her unilateral decision to defer to their daughter's final college selection.
It is worthy of note that the defendant has made all requested payments for tuition, and room and board, with the exception of the payment of his share of a $4,200 bill for three courses taken during the summer months at High Point, prior to the beginning of the fall semester, for which their daughter received seven credits. The court finds that the defendant was not consulted about this particular decision to attend the summer session at High Point and, in fact, he was surprised to learn that it was to occur during his summer access schedule.
Due to the defendant's claim in his motion that the plaintiff failed to "consult with and notify [him of his daughter's] college selection and unilateral enrollment," he seeks an order that his financial responsibility for college expenses be "limited to 1/3 of the current instate rate at Georgia Southern State University, where she had applied and had been accepted." Furthermore, in the event that she transfers to another institution of higher learning, he proposes to "pay 1/3 of the subsequent college costs as defined in the judgment, [provided the following conditions are met]: i. Plaintiff mother shall consult with defendant father on the college selection and defendant father shall actively participate in the final decision making process; and ii. Defendant father shall receive prior notification of the school selection prior to the child's enrollment." Defendant's Proposed Orders, dated December 18, 2009, at paragraph 2.1.
The defendant's motion is "for determination of college education expenses." This motion is not within those specified in the Practice Book; however, the court will look to "the substance of the claim rather than the form." Whalen v. Ives, CT Page 1433 37 Conn.App. 7, 16, 654 A.2d 798 (1995). The court concludes that the defendant's motion is consistent with a motion for advice or clarification, in which the defendant seeks the court's interpretation of the language of section 14 of the stipulated judgment. "Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper. There is no time restriction imposed on the filing of a motion for clarification. Nor is there a requirement that the same court that rendered the original judgment act on the motion for clarification." (Citations omitted; internal quotation marks omitted.) Zadravecz v. Zadravecz, 39 Conn.App. 28, 30-31, 664 A.2d 303 (1995); citing Holcombe v. Holcombe, 22 Conn.App. 363, 366, 576 A.2d 1317 (1990). Id.
"In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties. Separation agreements incorporated by reference into dissolution judgments are to be interpreted consistently with accepted principles governing contracts." Kremenitzer v. Kremenitzer, 81 Conn.App. 135, 139, 838 A2d 1026 (2004). "In construing a contract the controlling factor is normally the intent expressed in the contract, not the intent which the parties may have had or which the court believes they ought to have had. Thus, where there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.["] (Citations omitted; internal quotation marks omitted.) Zadravecz v. Zadravecz, supra, 39 Conn.App. 31. "[T]he language used must be accorded its common, actual and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Citations omitted.) Barnard v. Barnard, 214 Conn. 99, 110 (1990); also, Legg v. Legg, 44 Conn.App. 303, 306 (1997). "When the language is clear and unambiguous, however, the contract is to be given effect according to its terms." Greenberg v. Greenberg, 26 Conn.App. 591, 596 (1992), citing Barnard v. Barnard, supra, 110.
The court concludes that the provision at issue, requiring each party to make an equal contribution to the college education of their daughter, is clear and unambiguous. The language of the judgment unequivocally states that the defendant is to pay one-third of the cost of the gross college expenses for up to five years, "paid on a timely basis pursuant to the normal billing policies of whatever institution each child chooses to attend." The process for the selection of a college is not identified. Moreover, neither party is granted the right to choose or veto the college the child is to attend; instead, the agreed upon language of the judgment clearly contemplates payment for the child's choice of institution for her higher education. Furthermore, the language of section 14 provides categorical limitations on expenses and contemplates college completion beyond the ordinary period of four years. Therefore, to impose further limiting provisions concerning certain tuition payments during the five-year period agreed to by the parties, or to impose a new process limiting the child's college choice or new substantive limits on a maximum payment correlated to the cost of a state university, although reasonable, would result in a modification of the agreement, unauthorized by our dissolution statutes at the time of the judgment.
Prior to the judgment of dissolution in this case, "[t]he legislature amended General Statutes § 46b-66 (then § 46-49) in order to provide for the support of post majority children only if there is an agreement to do so and if it is in writing. Public Acts 1977, No. 77-488, § 1. The legislative history of the amendment makes it clear that such is the case. The purpose of the amendment was to ensure that a written agreement involving support for adult children and submitted to the court by the parties in connection with an action for a dissolution of marriage could be incorporated into the judgment or orders of the court, thereby making such orders enforceable through contempt proceedings . . . The legislature recognized that although a contract for the support of adult children might be enforceable by instituting a separate action for the enforcement of that contract, such a suit would require a lengthier time for resolution and that the agreement could not be enforced by contempt proceedings." (Citations omitted.) Arseniadis v. Arseniadis, 2 Conn.App. 239, 244-45, 477 A.2d 152 (1984).
At the time of the dissolution in this case, which occurred after the 1977 amendments to section 46b-66, the court's jurisdiction over post-majority educational support orders was limited to the interpretation and enforcement of written agreements incorporated into judgments. The legislature then amended General Statute § 46b-66 in 2001 to include jurisdiction to modify "[a]greements providing for the care, education maintenance or support of a child beyond the age of eighteen entered into after July 1, 2001 . . . to the same extent as another other provision of any order or decree in accordance with section 46b-86." General Statutes § 46b-66(b); See Public Acts 2001, No. 01-135, § 1. The agreement for college expenses in this case was incorporated into the judgment in 1997, and was therefore entered into prior to July 1, 2001. As such, it is non-modifiable.
The plaintiff claims the court lacks jurisdiction to consider the defendant's motion in this case. The court disagrees. Although the court concludes that it has jurisdiction over the college expenses provision in this case, the court is nonetheless without authority to modify this specific provision in the stipulated judgment.
"In O'Bryan v. O'Bryan, 67 Conn.App. 51, 787 A.2d 15, (2001), affirmed 262 Conn. 355, 813 A.2d 1001 (2003), the Appellate Court also addressed this distinction. The parties' separation agreement incorporated into the judgment of dissolution provided that the husband would pay post-majority child support, but did not contain any reference to post-majority modifications in the amount of that support. On the former wife's appeal from a modification of post-majority support, the Appellate Court citing Amodio rejected her claim that the court lacked subject matter jurisdiction. The court concluded that statutes authorizing a trial court to incorporate separation agreements providing for post-majority support into a divorce decree gave the court subject matter jurisdiction over the modification claim. Since case law provides, however, that post-majority support may only be modified if the written separation agreement had also provided for modification, the court concluded that it lacked substantive authority to modify the plaintiff's post-majority support obligation." Bowles v. Bowles, Superior Court, judicial district of New Haven at New Haven, Docket No. FA 94 0356104, (Frazzini, J., July 6, 2007) [ 43 Conn. L. Rptr. 731].
In Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999), the Supreme Court addressed the difference between subject matter jurisdiction and the trial court's substantive authority pursuant to statutory authority. In Amodio, the Appellate Court held that the trial lacked subject matter jurisdiction to modify a child support award, holding that substantive limits on the court's authority to modify a particular order do not raise jurisdictional issues.
The court concludes that it has subject matter jurisdiction over the college expenses agreement, but lacks statutory authority to grant the relief requested, which would require a modification of the stipulated judgment. Therefore, the motion is denied.