193 Conn.App. 190
Conn. App. Ct.2019Background
- Parties (Virginia Cha Barber and Atiim Kiambu Barber) executed a detailed 60‑page separation agreement, incorporated into a New York divorce decree and governed by New York law; it required the defendant to pay percentage‑based basic child support and various add‑on expenses and contained a default clause awarding fees if a party seeks to vacate or invalidate the agreement.
- After the divorce the defendant moved to New Jersey and the plaintiff moved with the children to Connecticut; the defendant later registered the NY judgment in Connecticut and filed a postjudgment motion to modify child support, claiming a substantial change in financial circumstances.
- The plaintiff filed a motion asking the Connecticut court to apply New York child support guidelines to the modification proceeding; Judge Tindill ruled New York substantive law applied to modification.
- At a merits hearing Judge Colin denied the defendant’s motion to modify (finding no substantial change warranting modification), denied the plaintiff’s contempt motions and requests for attorney’s fees, but ordered the parties’ accountants to exchange computations using the NY guidelines (including adjusted gross income) to try to reconcile arrears.
- Plaintiff appealed, arguing the court rewrote the agreement by its prospective accounting order and wrongly denied fees; defendant cross‑appealed the choice‑of‑law ruling. The appellate court affirmed the trial court’s rulings and dismissed the cross appeal as moot.
Issues
| Issue | Plaintiff's Argument (Virginia Barber) | Defendant's Argument (Atiim Barber) | Held |
|---|---|---|---|
| Did the court impermissibly rewrite the parties’ agreement by ordering accountants to use adjusted gross income and a timetable to calculate basic child support? | The order substituted the court’s calculation method (adjusted gross income) for the parties’ agreed formula. | The court merely enforced the agreement’s dispute‑resolution provisions and directed accountants to follow the NY guidelines and agreement illustrations to narrow issues. | Court did not rewrite the agreement; the order enforced the agreement’s procedure and used terms already incorporated by the agreement. |
| Is plaintiff entitled to attorney’s fees for defending the choice‑of‑law (i.e., opposing defendant’s effort to have Connecticut law apply) under the agreement’s clause that awards fees when a party seeks to vacate or declare the agreement invalid? | Filing and opposing the defendant’s motion required fees because the defendant sought to invalidate the agreement by asking for Connecticut law to apply. | A motion to modify is not the same as an action to vacate or set aside the agreement; ‘modify’ means change, not annul. | Record inadequate to review the fee denial on this ground because the trial court provided no factual/legal analysis; appellate court would not speculate about the trial court’s reasons. |
| Is plaintiff entitled to attorney’s fees under the agreement’s default provision after prevailing (in part) on add‑on expense claims? | Plaintiff prevailed and obtained an award; therefore she is the successful aggrieved party and should receive contractual fees. | Plaintiff was not fully successful; there were good‑faith disputes, she sought some improper reimbursements, and defendant disputed credits/payments—no willful breach. | Trial court did not err: plaintiff’s contempt motion was not fully successful, court found no willfulness and a good‑faith dispute, so contractual fee award was not warranted. |
| Was it error to apply New York substantive law to modification (cross‑appeal)? | N/A | Applying Connecticut law should govern because the judgment was registered in Connecticut. | Cross‑appeal dismissed as moot: both NY and CT use the same standard (substantial change in circumstances), and the motion to modify would be denied under either law. |
Key Cases Cited
- MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (U.S. 1994) (definition of “modify” as a change rather than annulment)
- O’Brien v. O’Brien, 161 A.3d 1236 (Conn. 2017) (contempt requires willful violation; good‑faith dispute negates willfulness)
- Giordano v. Giordano, 101 A.3d 327 (Conn. App. 2014) (American rule on attorney’s fees; contractual or statutory exceptions required)
- Ahmadi v. Ahmadi, 985 A.2d 319 (Conn. 2009) (settlement stipulations incorporated into decrees are interpreted as contracts)
- Breiter v. Breiter, 835 A.2d 111 (Conn. App. 2003) (contract interpretation principles; clear language is enforced as written)