CHELSEA CHAPMAN KIRWAN v. LAURENCE KIRWAN
(AC 40789)
Alvord, Prescott and Norcott, Js.
Argued October 25, 2018-officially released January 22, 2019
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Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgments of the trial court ordering him to pay for a portion of his children‘s private middle school tuition and finding him in contempt for violating that order. The dissolution judgment incorporated by reference a pendente lite arbitration award that had resolved many of the issues raised in the dissolution action. The parties, however, expressly reserved for the trial court resolution of child related financial issues. Thereafter, following a hearing, the trial court issued child support orders, which, by agreement of the parties, were made retroactive to the date of the dissolution judgment, and ordered, inter alia, that the parties were to make determinations regarding their children‘s private middle school education in accordance with their parenting plan and that they would share the children‘s educational expenses, with the plaintiff responsible for 25 percent and the defendant responsible for 75 percent. Subsequently, the plaintiff filed a motion for an order requesting that the court order the defendant to pay his share of their children‘s private middle school tuition for the 2015-2016 and 2016-2017 academic years, and later requested that the defendant also pay his share of the 2017-2018 tuition. The defendant objected to the motion for an order, arguing that the children‘s enrollment in the school had not been made in compliance with the parties’ parenting plan, which provided that the parties must consider, discuss and agree on major decisions concerning their children‘s education. The children began attending the private middle school in the fall of 2014, and the parties entered into their parenting plan in May, 2015. The trial court granted the plaintiff‘s motion for an order and ordered the defendant to pay 75 percent of the children‘s private middle school tuition for the subject academic years, and the defendant appealed to this court. Thereafter, the plaintiff filed a motion for contempt, alleging that the defendant had failed to pay the children‘s private middle school tuition in violation of the court‘s order. The trial court granted the motion for contempt, finding that the defendant‘s failure to comply with its order was wilful. On the defendant‘s amended appeal to this court, held:
- The defendant could not prevail on his claim that the trial court erred by ordering him to pay 75 percent of his children‘s private middle school tuition for the 2015-2016, 2016-2017 and 2017-2018 academic years, which was based on his claim that the children‘s enrollment in the school was not decided in accordance with the parties’ parenting plan; that court did not abuse its discretion in granting the plaintiff‘s motion for an order because even if the plaintiff did not confer or consult with the defendant regarding the children‘s continued enrollment in the private middle school pursuant to the parenting plan, the parties’ decision to enroll the children in the school had been made by the fall of 2014, and the 2015 parenting plan was forward looking, governing the parties’ collaborative behavior as to future child rearing decisions, and, therefore, the trial court reasonably could have found the defendant responsible for his 75 percent share of the children‘s private middle school tuition for the subject academic years.
- The defendant could not prevail on his claim that the trial court erred by ordering him to pay the portion of the children‘s 2015-2016 tuition that was incurred prior to the dissolution of the parties’ marriage in October, 2015; the trial court did not abuse its discretion in allocating the marital tuition debt for the 2015-2016 academic year in addition to allocating responsibility for the postdissolution tuition for the 2016-2017 and 2017-2018 academic years in accordance with its child related financial orders, that court having properly exercised its authority pursuant to the applicable statute (
§ 46b-81 ) to allocate between the parties the marital debt related to the children‘s 2015-2016 private middle school tuition, which was incurred prior to the entry of the dissolution judgment. - The trial court did not abuse its discretion in finding the defendant in contempt for his failure to comply with its order regarding the children‘s private middle school tuition; the trial court‘s underlying order was sufficiently clear and unambiguous to support its finding of contempt, as the court clearly stated that the defendant was obligated to pay 75 percent of the children‘s private middle school tuition for the 2015-2016, 2016-2017 and 2017-2018 academic years, and its suggestion to the defendant regarding potential outside avenues to effectuate payment of his tuition obligation did not make unclear his financial responsibility for the arrearage created by his failure to pay his share of the tuition; moreover, the defendant‘s contention that he was unable to pay for the children‘s tuition, and, therefore, that his noncompliance with the order was not wilful was unavailing, as the court‘s findings that the defendant‘s annual income was approximately $400,000 and that he did not meet his burden of proving that he was unable to pay his court-ordered obligation were supported by the testimony of the defendant‘s accountant and, thus, were not clearly erroneous.
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Tindill, J., approved the agreement of the parties to enter into binding mediation/arbitration as to certain disputed matters; thereafter, the arbitrator issued an award and entered certain orders; subsequently, the arbitrator issued a clarification of the award; thereafter, the court granted the defendant‘s motion to confirm the arbitrator‘s award and rendered judgment incorporating the arbitrator‘s award and clarification, and dissolving the marriage and granting certain other relief; subsequently, the court issued certain orders; thereafter, the court, Heller, J., granted the plaintiff‘s motion for an order regarding certain tuition payments; subsequently, the court, Heller, J., denied the defendant‘s motion to reargue, and the defendant appealed to this court; thereafter, the court, Heller, J., issued an articulation of its decision; subsequently, the court, Heller, J., granted the plaintiff‘s motion for contempt, and the defendant filed an amended appeal. Affirmed.
Laurence Kirwan, self-represented, the appellant (defendant).
Joseph T. O‘Connor, for the appellee (plaintiff).
Opinion
On appeal, the defendant raises various repetitive and overlapping claims of error, which this court has distilled into the three inclusive issues addressed in this opinion. The core of the defendant‘s claims are that the court erred in (1) ordering him to pay 75 percent of his children‘s private middle school tuition for the 2015-2016, 2016-2017, and 2017-2018 academic years, because their enrollment in the school was not decided pursuant to the parties’ parenting plan, (2) ordering him to pay for a portion of the 2015-2016 school year tuition that was incurred before October 23, 2015, the date of the dissolution, and (3) finding him in contempt. We disagree and, accordingly, affirm the judgments of the trial court.
The following facts and procedural history, relevant to our resolution of the defendant‘s claims in the present appeal, were recently set forth by this court in Kirwan v. Kirwan, 185 Conn. App. 713, 201 A.3d 1083 (2018).4 “The parties were married in 2001. The defendant is a plastic surgeon with offices in New York, Norwalk, and London, as well as a consultant and a professor of plastic surgery. The plaintiff is college educated and worked in pharmaceutical sales until shortly after she married the defendant, at which time she worked for the defendant in his medical practice. The parties have three minor children together, one of whom has special needs. Prior to their marriage, the parties entered into a premarital agreement that, in relevant part, limited the plaintiff‘s alimony in the event of divorce to $50,000 a year for five years and allocated 45 percent of the value of the marital home to the plaintiff as her share of marital property. In September, 2012, the plaintiff initiated an action to dissolve the parties’ marriage.
“On May 26, 2015, the court, Tindill, J., approved an agreement by the parties to enter into binding mediation/arbitration of the dissolution action. Pursuant to the parties’ arbitration agreement, which was made an order of the court, ‘[t]he parties agree[d] that the following issues in their action for dissolution of marriage shall be the subject of mediation and, if the parties are unable to resolve these issues via mediation, to binding arbitration . . . .’ The list of issues to be resolved in arbitration included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony in accordance with
“On August 4, 2015, the arbitrator, former Superior Court Judge Elaine Gordon, issued her arbitration award. As a preliminary matter, the arbitrator determined that the parties’ premarital agreement was unconscionable, and thus unenforceable, due to ‘the present, uncontemplated circumstances’ of the parties.5 The arbitrator issued a number of orders regarding alimony and the distribution of marital assets, including an order directing the sale of the marital home. In support of her orders, the arbitrator made several factual findings, including that ‘[t]he defendant‘s annual [gross] income is found to be approximately $400,000 per year based on his income tax returns, business financial statements and the information he has provided to lending institutions on his applications.’ As previously noted, the arbitration award indicated that ‘[t]he issues of custody, access, child support, maintenance and cost of medical insurance for minor children and unreimbursed medical expenses are reserved to the Connecticut Superior Court.’
“On September 1, 2015, the defendant filed a motion asking the court to confirm the arbitration award and to render judgment dissolving the parties’ marriage in accordance with the arbitration award. On that same date, the plaintiff filed a motion asking the court to issue orders on the unresolved matters of child support and postsecondary educational expenses. Neither party filed an objection to the other party‘s motion, and the matters were set down for a hearing on October 23, 2015. At that time, the court rendered a judgment of dissolution of marriage that incorporated by reference the arbitration award and subsequent clarification. The parties agreed that the court would determine the defendant‘s child support obligations, including the issue of unreimbursed medical expenses and child care, after an evidentiary hearing, and that child support obligations would be made retroactive to the date of dissolution.” (Footnotes altered.)
The following additional facts, as found by the trial court, and procedural history are relevant to our resolution of this current appeal by the defendant. On December 7, 2016, following a five day hearing on child related financial orders as well as several postjudgment motions, the court issued a memorandum of decision ordering, inter alia, that the parties were to make determinations regarding their children‘s private middle school education in accordance with their parenting plan.6 The court also ordered that the parties would share the children‘s educational expenses, with the plaintiff responsible for 25 percent and the defendant responsible for 75 percent.
In January, 2015, the defendant visited Saints John and Paul School, where his daughters were enrolled in fifth grade. The defendant met with the school‘s assistant principal. During the visit, he asked questions about the school and his children‘s French language studies. At that time, he expressed no objection to his children being educated at Saints John and Paul School.
On January 19, 2017, the plaintiff filed a motion for an order regarding the defendant‘s payment of his share of the private middle school tuition. In this motion, the plaintiff requested that the court order the defendant to pay $36,000, representing his share of the tuition costs for the 2015-2016 and 2016-2017 academic years. The plaintiff later requested that the defendant also pay his share of the 2017-2018 tuition costs. In objecting to the plaintiff‘s motion for an order, the defendant argued that the children‘s enrollment in private middle school had not been made in compliance with the May, 2015 parenting plan and that he was therefore not obligated to pay his share of the tuition costs. On June 22, 2017, the plaintiff filed a motion seeking an immediate hearing on her motion for order, wherein she also replied to arguments raised in the defendant‘s objection to her motion for an order.
On July 17, 2017, the trial court, Heller, J., on the record, granted the plaintiff‘s January 19, 2017 motion for order and overruled the defendant‘s objection thereto. Specifically, the court found that “under the orders that were entered by Judge Tindill in December, 2016 retroactive to October, [2015], the defendant is obligated to pay 75 percent of the tuition that is past due from 2015 to 2016 and 2016 to 2017, and for the coming year of 2017 to 2018.” On July 31, 2017, the defendant filed a motion to reargue. On August 25, 2017, the court issued a written order summarily denying that motion. The defendant then filed this timely appeal.
On September 11, 2017, the defendant filed a motion for articulation of the trial court‘s July 17, 2017 decision. The plaintiff filed an objection thereto. The trial court summarily denied the motion for articulation and sustained the objection thereto. The defendant then filed a motion for review with this court.
On January 18, 2018, this court ordered the trial court to articulate the factual and legal basis of its July 17, 2017 decision to the extent that the defendant argued that he was not required to pay tuition costs incurred prior to October 23, 2015. On January 26, 2018, the trial court articulated its decision. It explained that the plaintiff incurred the debt to Saints John and Paul School for the parties’ children during the 2015-2016 school year prior to the entry of the October, 2015 dissolution judgment, and that, under
On August 9, 2017, the plaintiff filed a motion for contempt. The plaintiff claimed that the defendant had failed to pay, or
On February 5, 2018, the court found the defendant in contempt for failing to comply with the court‘s July 17, 2017 order to pay 75 percent of his children‘s tuition for the 2015-2016, 2016-2017, and 2017-2018 academic years. In finding the defendant in contempt, the court determined that the defendant‘s failure to comply with the court‘s order was wilful. The defendant‘s annual income from his medical practice was approximately $400,000. Rather than paying for his children‘s tuition, the defendant chose to satisfy over $100,000 in other debt. In addition, although he was entitled to $53,519 from his 2016 federal income tax return, the defendant chose to apply the entire amount to his 2017 estimated taxes. In finding the defendant in contempt, the court ordered him incarcerated but stayed the order of incarceration to provide him with an opportunity to purge the contempt by making a payment of $10,278.88 to the plaintiff, which represented 20 percent of the total due by the defendant to Saints John and Paul School. Lastly, the court awarded, pursuant to
I
The defendant claims that the trial court erred by ordering him to pay 75 percent of his children‘s private middle school tuition for the 2015-2016, 2016-2017, and 2017-2018 academic years, because their enrollment in the school was not decided pursuant to the parenting plan he entered into on May 26, 2015.8 Specifically,
We begin by setting forth the relevant standard of review. “An appellate court will not disturb a trial court‘s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases . . . .” (Internal quotation marks omitted.) Budrawich v. Budrawich, 156 Conn. App. 628, 637, 115 A.3d 39, cert. denied, 317 Conn. 921, 118 A.3d 63 (2015).
We conclude that the court did not abuse its discretion when it granted the plaintiff‘s motion for an order on July 17, 2017, even if the plaintiff did not confer or consult with the defendant regarding their children‘s continued enrollment at Saints John and Paul School.9
The parties’ children began attending middle school at Saints John and Paul School in the fall of 2014. In January, 2015, the defendant visited Saints John and Paul School and expressed no objection to his children being enrolled at its middle school.10 At the time the parties
In its July 17, 2017 order, the court explained that the children‘s continued enrollment in middle school at Saints John and Paul School was not a decision governed by the parenting plan because “[t]hat was the status quo. This was not a future plan or a major decision because they were already attending that school when the parties entered into the parenting plan.”
The decision to enroll the children in Saints John and Paul School had been made by the fall of 2014, when the children first entered the middle school program. The parenting plan was forward looking and governed the parties’ collaborative behavior as to future child rearing decisions. Thus, the court reasonably could have found the defendant responsible for his 75 percent share of the children‘s private middle school tuition for the 2015-2016, 2016-2017, and 2017-2018 academic years.
II
The defendant also claims that the trial court erred by ordering him to pay the children‘s tuition that was incurred prior to the October 23, 2015 date of the dissolution. He argues that the court, in its December 7, 2016 memorandum of decision, ordered that he pay 75 percent of the children‘s private middle school tuition retroactive to October 23, 2015, the date of the dissolution, and, therefore, that order did not cover tuition fees incurred prior to that date. We disagree.
Under
The plaintiff incurred the debt at issue, to Saints John and Paul School for the 2015-2016 academic year, prior to the entry of the October 23, 2015 dissolution judgment. This children‘s private middle school tuition bill remained unpaid as of the date of the parties’ dissolution. The court had the authority pursuant to
III
Finally, the defendant claims that the court erred by finding him in contempt. Specifically, he argues that (1) the court‘s July 17, 2017 order was not sufficiently clear and unambiguous, (2) the court‘s factual findings regarding his ability to comply with the order, based on his income, were not supported by the evidence, (3) the court considered the use of his funds prior to the July 17, 2017 order even though there were no automatic orders in place limiting the use of those funds, and (4) he did not have the funds to comply with the order, and, therefore, his noncompliance was not wilful.13 We conclude that this claim has no merit.
We begin by setting forth our standard of review and relevant legal principles. “First, we must resolve the threshold question of whether the underlying order con- stituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the
The defendant first argues that the court‘s July 17, 2017 order was not sufficiently clear and unambiguous. To support his contention, the defendant directs our attention to the court‘s suggestion that the defendant consider, “if this is an economic hardship to make a substantial lump sum payment for tuition, that he consult with the school and ask whether a payment plan would be possible for him to continue to pay that.” The defendant, in essence, argues that the court‘s suggestion rendered the tuition payment order ambiguous. We disagree. The court clearly stated that “the defendant is obligated to pay 75 percent of the tuition that is past due from 2015 to 2016 and 2016 to 2017 and for the coming year of 2017 to 2018.” The court‘s suggestion to the defendant regarding potential outside avenues to effectuate payment of his tuition obligation did not make unclear his financial responsibility for the arrearage created by his failure to pay his share of the children‘s private middle school tuition. Thus, we conclude that the court‘s July 17, 2017 order was sufficiently clear and unambiguous to support its February 5, 2018 finding of contempt.
The defendant‘s next three arguments are based on his contention that he was unable to pay for his children‘s tuition. He argues that, due to his inability to pay, his failure to comply with the court‘s order was not wilful, and, therefore, he could not be held in contempt. To constitute contempt, “a party‘s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. . . . [I]nability to pay is a defense to a contempt motion. However, the burden of proving inability to pay rests upon the obligor.” (Internal quotation marks omitted.) Marshall v. Marshall, 151 Conn. App. 638, 650-51, 97 A.3d 1 (2014). The court found that the defendant‘s annual income was approximately $400,000 and that he did not meet his burden of proving that he was unable to pay his court-ordered obligation.
We review the court‘s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Dionne v. Dionne, 115 Conn. App. 488, 494, 972 A.2d 791 (2009). During the October 23, 2017 hearing on the plaintiff‘s motion for contempt, the defendant called his accountant, Philip Ayoub, to testify as to his “actual disposable income” from his professional service corporation for the first six months of 2017. Ayoub explained that the defendant, as the sole shareholder of Dr. K Services, P.C., his medical practice, has two sources of income from
The judgments are affirmed.
In this opinion the other judges concurred.
Notes
The crux of the defendant‘s first and second claims are that the children‘s tuition was not included within the child related financial issues that were reserved to the trial court. We disagree. The arbitration award indicated that “[t]he issues of custody, access, child support, maintenance and cost of medical insurance for minor children and unreimbursed medical expenses are reserved to the Connecticut Superior Court.” Although the children‘s tuition was not explicitly listed as one of the issues reserved, the parties consistently treated the tuition as part of the child related financial issues to be addressed by the court. Next, the court did not disturb the orders of the parenting plan. Rather, the court found that the parenting plan did not apply. Moreover, in the defendant‘s motion for modification, which he filed on December 19, 2016, the defendant sought to modify his weekly child support obligation. The motion did not address the issue of the children‘s tuition. Lastly, nothing in the record indicates that there was an automatic stay in place regarding child support or the children‘s tuition. See Schull v. Schull, 163 Conn. App. 83, 99, 134 A.3d 686, cert. denied, 320 Conn. 930, 133 A.3d 461 (2016) (orders related to child support are not automatically stayed under
Moreover, with respect to the e-mails, the plaintiff objected to their admission on the basis of hearsay and pointed out that they were sent from the defendant to the defendant‘s attorney. The following colloquy took place between the court and the defendant:
“The Court: . . . I don‘t want you to inadvertently waive the attorney-client privilege.
“[The Defendant]: I understand.
“The Court: So, perhaps you can get in the gist of that through your own testimony too.
“[The Defendant]: Absolutely. So, just initially starting with the e-mail of 6/22/14. There‘s some question about whether or not I had objected prior to the children starting school in St. John and Paul. And it says, I have no idea where the children are currently living, etc. With regard to schooling next year, I have no idea which schools the children are going to.”
From the record, it is not clear that the court precluded the defendant from presenting evidence of the e-mails. Rather, upon learning that he risked waiving his attorney-client privilege, the defendant did not offer the e-mails into evidence. However, even assuming that the court improperly excluded the defendant‘s evidence, the defendant has failed to demonstrate harm. See Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 158, 971 A.2d 676 (2009) (“[e]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm” [internal quotation marks omitted]); see also Lovetere v. Cole, 118 Conn. App. 680, 682, 984 A.2d 1171 (2009) (“[i]n the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless” [internal quotation marks omitted]). The defendant testified about the content of the e-mails. Thus, he has failed to show that admission of the e-mail correspondence would have affected the court‘s judgment.
We view the present case, where the parties agreed, at the time of their dissolution, to defer resolution of their child related financial issues, as a logical extension of Reinke, where the parties agreed, postdissolution, to modify the division of their property. The present case, however, unlike Reinke, does not involve the redistribution of assets and did not require the court to open the judgment of dissolution. Thus, the court here did not need to be presented with a postdissolution agreement of the parties in order to effectuate the division of their marital liability because the parties specifically agreed, at the time of the dissolution, to reserve adjudication of child related financial issues. We therefore see no legal impediment to the court‘s authority to allocate the marital tuition debt for the 2015-2016 academic year.
In addition, with respect to the court‘s award of attorney‘s fees, the defendant argues that “[b]ecause of the errors of the court . . . [he] is not in contempt and . . . should not be liable for plaintiff‘s fees.” His argument that the court improperly awarded attorney‘s fees necessarily depends on a determination that the court abused its discretion when it found him in contempt. Because we conclude that the court did not abuse its discretion in finding the defendant in contempt, we also conclude that the court did not abuse its discretion when it awarded attorney‘s fees under
Lastly, the defendant argues that the court‘s order improperly prohibits him from hiring counsel on appeal. The defendant‘s argument, in its entirety, states: “Not only does the defendant lack the financial ability to satisfy the orders of the court . . . and to engage counsel but in addition, should the defendant have funds, is prohibited from using them to [engage] counsel for his defense, as he would then be deemed in willful contempt of the current orders.” This argument finds no support in the record. Neither the court‘s July 17, 2017 ruling on the plaintiff‘s motion for an order nor the court‘s February 5, 2018 finding of contempt provides a basis for the defendant‘s assertion that he would have been held in contempt if he had hired counsel to represent him on appeal. Accordingly, the defendant‘s argument fails.