PETER J. SCOTT v. KYU SCOTT
AC 44304
Appellate Court of Connecticut
Argued January 13—officially released September 6, 2022
Prescott, Elgo and Suarez, Js.
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court denying her motion for contempt. The defendant had alleged that the plaintiff wilfully refused to comply with several financial orders in the parties’ separation agreement, which was incorporated into the dissolution judgment, by failing to reimburse her for certain expenses she unilaterally incurred on behalf of the couple‘s minor children, including, inter alia, $5775 for dental surgery, $51,500 for the cost of a private college coach and $9000 for an automobile, as well as the significant cost of a twenty-two day enrichment program in Jackson, Wyoming. The trial court concluded that the plaintiff‘s actions did not rise to the level of contempt. It determined that the separation agreement was ambiguous as to the date on which certain of the parties’ financial obligations were to commence and that the defendant sought reimbursement for items that either were not covered by the agreement or for which she had not obtained the plaintiff‘s consent, as required under the agreement. The court further concluded that certain of the defendant‘s expenditures were extravagant and unnecessary and that she had not acted in good faith under the agreement. On appeal, the defendant claimed, inter alia, that the trial court improperly rewrote the separation agreement, thereby denying her reimbursement from the plaintiff, and improperly awarded him attorney‘s fees pursuant to the statute (
- The trial court did not err in denying the defendant‘s motion for contempt, as the separation agreement was ambiguous regarding the date on which the plaintiff was to commence paying the children‘s tuition as well as certain other financial obligations; although the agreement contained a definitive commencement date for the plaintiff‘s payment to the defendant of unallocated alimony and child support, it did not provide a start date for the payment of the children‘s expenses, and, as there were two reasonable interpretations of the commencement dates, those portions of the agreement did not constitute clear and unambiguous orders of the court.
- The defendant‘s claim that the trial court modified the separation agreement‘s child support order such that the plaintiff was not required to pay for certain of the children‘s expenses was unavailing, as the court‘s findings that the plaintiff was not required to reimburse the defendant for the cost of the automobile she bought for the children, as well the costs for the private college coach and the enrichment program, were not clearly erroneous: although the provision of the agreement pertaining to the car was ambiguous, the court determined, after considering all of the evidence, that the parties did not intend the agreement to cover the cost of an automobile but, rather, the expenses for a child to obtain a license to drive an automobile as well as related expenses such as fuel, maintenance, insurance or driving lessons; moreover, the court‘s finding that the defendant‘s conduct did not comport with an implicit duty of good faith was supported by the record, as the enrichment program was more akin to a vacation for the defendant and the children than an extracurricular activity for the children, and the expenditure for the private college coach was extravagant and unnecessary in light of the fact that college counseling was part of the tuition package at the children‘s boarding school; furthermore, the plain and unambiguous meaning of the separation agreement did not obligate the plaintiff to reimburse the defendant for the hundreds of lower monetary value expenses she itemized that could not be considered extracurricular or related to organized activities within the meaning of the agreement.
- The trial court did not abuse its discretion when it did not enter orders requiring the plaintiff to reimburse the defendant for children‘s expenses that she unilaterally incurred, the court having properly concluded that those expenses were either not covered under the agreement or were not made in good faith.
- The trial court did not err in determining that the defendant was not entitled to full reimbursement from the plaintiff for the cost of the children‘s dental procedures: contrary to the defendant‘s assertion, the court‘s factual findings with respect to those procedures were not clearly erroneous but were supported by evidence that the plaintiff arranged for the procedure to be done by an in-network dentist and agreed to share the cost with the defendant, as was his prerogative under the separation agreement, but that the defendant insisted that the procedures be done by an out-of-network oral surgeon because it was an emergency; moreover, because the plaintiff did not agree to have the procedure performed by the out-of-network dentist and the defendant did not offer any credible evidence as to the nature of the procedure or the necessity that it be performed quickly and by a particular oral surgeon, she was required under the agreement to obtain the plaintiff‘s consent for the procedure; accordingly, the court properly concluded that the defendant was entitled under the separation agreement to reimbursement for 60 percent of the cost of the procedures performed by an in-network dentist or oral surgeon.
- The trial court did not abuse its discretion in awarding the plaintiff attorney‘s fees, as
§ 46b-87 permits the award of such fees to the prevailing party in a contempt proceeding: the plaintiff‘s actions did not rise to the level of wilful contempt, whereas the defendant did not exercise good faith and good judgment in making arbitrary and unilateral expenditures that were based on a strict reading of the separation agreement; moreover, the court properly considered the defendant‘s behavior, as an award of attorney‘s fees under§ 46b-87 is punitive, rather than compensatory, and, contrary to the defendant‘s contention, the court‘s ability to award the plaintiff attorney‘s fees was not impacted by its order that the plaintiff reimburse her for certain tuition costs, as a trial court has broad discretion to make a party whole, even in the absence of a finding of contempt, as well as the authority under its equitable powers to fashion an order designed to protect the integrity of the dissolution judgment.
Affirmed.
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 and tried to the court, Hon. Stanley Novack, judge trial referee; judgment dissolving the marriage and granting certain other relief in accordance with the parties’ separation agreement; thereafter, the court, Hon. Michael E. Shay, judge trial referee, denied the defendant‘s motion for contempt, entered certain financial orders, and awarded attorney‘s fees to the plaintiff, and the defendant appealed to this court. Affirmed.
Samuel V. Schoonmaker IV, for the appellant (defendant).
Gary I. Cohen, for the appellee (plaintiff).
Opinion
The following facts, as found by the court or as undisputed in the record, and procedural history are relevant to this appeal. The marriage of the plaintiff and the defendant was dissolved on March 4, 2015. Prior to the dissolution, the plaintiff and the defendant entered into the agreement, which was approved by the court and incorporated by reference into the dissolution decree. The agreement provides for the joint legal and physical custody of the parties’ two children.
The agreement also included an award of unallocated alimony and child support. Specifically, article 3.1 requires the plaintiff, beginning on January 1, 2015, to pay to the defendant a percentage based “unallocated alimony and child support until the death of either party, the [defendant‘s] remarriage, prior to the minor children‘s high school graduation or the completion of four . . . years of high school, or her cohabitation as defined in . . .
Article V, which is titled “Pre-College Children‘s Expenses,” provides for the payment of the children‘s expenses while they attend boarding school. Article 5.11 requires the plaintiff to pay 60 percent and the defendant to pay 40 percent of the unreimbursed or uninsured medical and dental expenses of the children. Article 5.22 requires the plaintiff to pay 60 percent and the defendant to pay 40 percent of the cost of boarding or private school. Article 5.33 requires the plaintiff to pay 60 percent and the defendant to pay 40 percent of the children‘s “[e]xtracurricular, [o]rganized [a]ctivities and [o]ther [e]xpenses . . . .” Articles 5.1, 5.2 and 5.3 each provide that the plaintiff must pay 100 percent of the children‘s expenses “[i]n year five” if the children are still attending boarding school. Article 5.44 requires the plaintiff to reimburse the defendant for article 5.3 expenses that she pays within one month of the defendant‘s request for payment.
Article 3.55 provides that if the alimony support obligation terminates, “then
On June 19, 2018, the defendant filed a motion for contempt, alleging that the plaintiff was not complying with several financial orders contained in the agreement. Specifically, the defendant claimed that the plaintiff “wilfully and deliberately failed and refused to comply with the court‘s order concerning his agreement to pay for the children‘s expenses, including unreimbursed medical and dental expenses, boarding or private school, college coach, car insurance, extracurricular, organized activities and other expenses.” In her motion, the defendant asked the court to find the plaintiff in contempt, enter an order requiring the plaintiff to comply with the portions of the agreement regarding the children‘s expenses, and award her attorney‘s fees. In response, the plaintiff filed a motion for attorney‘s fees asking that he “be awarded . . . reasonable counsel fees and costs incurred in defending against the baseless claim of contempt, pursuant to . . .
The court conducted an evidentiary hearing on the motion on December 4 and 6, 2019. On February 4, 2020, the court issued a memorandum of decision on the defendant‘s motion for contempt. The court began by noting that the “first task of the court is to determine if the order on which the claim is based is clear and unambiguous. In this matter, during final argument, counsel for the [defendant] observed that the agreement itself is, ‘hardly a road map of clarity.’ The court agrees. The initial confusion stems from the meaning
“Under article 3.5 of the agreement, the parties were obligated to calculate the appropriate amount of child support retroactive to the date that the alimony ended, and they have not done so as of the date of the hearing. On the other hand, what they have done is come to an informal arrangement or, more accurately, a large misunderstanding regarding the scope of article 5.3, whereby each party makes general expenditures on behalf of the children, tallies them all up, and sends the sum total to the other party for a monetary adjustment in favor of one or the other. The parties agreed by stipulation . . . in January, 2018, that their accounts were square as of the end of 2017.
“That informal arrangement notwithstanding, the biggest problem with the arrangement is that it is not a clear and unambiguous order of the court, and, hence, a failure to comply is not a breach and does not result in a finding of contempt.8 Second, and perhaps more
problematic, is the fact that the [defendant] has blurred the lines, in her claim, merging, for example, the children‘s snacks, allowance, haircuts, and clothing, to name just a few items that are clearly not ‘extracurricular,’ with some items that arguably fall into that category and are covered by the agreement, and, as a result, could be the subject of a motion for contempt. The tuition at Choate Rosemary Hall [boarding school] would be a good example. Last, the specific items that she has claimed, while they may be within the ‘black letter’ of the agreement, were made unilaterally, without the agreement of the [plaintiff], were either unnecessary or an unusually large expenditure (e.g., ‘college coach‘) and, hence, were not made in good faith. Accordingly, the [defendant] should be fully responsible for the cost of the college coach, the car purchased for the children and the enrichment experience in Jackson, Wyoming. The [plaintiff‘s] liability for the dental surgery should be limited to 60 [percent] of the cost of the procedure performed by the in-network dentist or oral surgeon.” (Citation omitted; emphasis omitted; footnote in original.)
The court found that the use of the words “[i]n year five” in article V of the agreement was ambiguous. The court determined that, “[l]ooking at the plain meaning of the words, there are two logical ways to interpret what was intended to be the commencement date for the operative financial obligations set forth in the agreement, that is: (a) from and including March 4, 2015, the date of the agreement itself, or (b) retroactively from and including January 1, 2015. It is clear from a reading of article 3.1 that the [plaintiff‘s] alimony obligation commenced on January 1, 2015. It is also clear that the parties did not intend that there be a gap in coverage for the children‘s unreimbursed medical expenses as set forth in article 5.1. Accordingly, the court finds that the agreement is ambiguous as to this issue. However, looking at the agreement as a whole, the court finds that a start date of January 1, 2015, would be more consistent with the intent of the parties and more likely to carry its terms and provisions of same into effect.”
On the basis of these findings, the court later concluded that, “under all the circumstances, the relevant provisions of the agreement in question are ambiguous, and the [plaintiff‘s] actions do not rise to the level of contempt; and that, however, notwithstanding a finding of no contempt, as to the private school expenses, the intent of the parties was to use the calendar year and not the designated school year (i.e., freshman, sophomore, etc.) as a basis for determining the respective responsibilities of the parties based upon the following considerations: (a) at the time that the clause was drafted, both children were attending public school; (b) the decision to
As to the unreimbursed medical and dental expenses, the court made several findings of fact and conclusions, stating that “[t]he parties do not appear to have a dispute as to the application of their respective shares of these expenses but, rather, to specific expenditures. For instance, the [defendant] seeks 100 [percent] reimbursement from the [plaintiff] for a dental procedure for the children. The [plaintiff] had made long-standing arrangements for the procedure to be done by an in-network dentist, and, at the last minute, the [defendant] arbitrarily changed to an out-of-network oral surgeon, claiming that it was an emergency. The dental surgeon‘s bill was $5775. . . . The [defendant] did not offer any credible evidence or expert testimony as to the nature of the procedure and much less the necessity that it be performed quickly and by whom. Under all the circumstances, it would be unfair to make the [plaintiff] bear the entire cost over and above the normal charges that he had already made arrangements to have done.” (Citation omitted.)
With respect to the private school tuition, the court made the following findings of fact and conclusions: “At the time of the dissolution, the children were both attending Eastern Middle School, a public school in Greenwich. A mutual decision was reached later, while the children were still students at Greenwich High School, to send them to Choate Rosemary Hall as boarding students, where they would repeat [ninth] grade. It is important to note that the parties could have, but did not, [specify] that this provision applied to the traditional, specific academic years (i.e., freshman, sopho-more, etc.), as they did do in article 3.1 relating to the termination of alimony. Rather, they used the generic description, ‘years one through four.’ The [plaintiff‘s] contention, however, is just that. In essence, notwithstanding the repetition of the freshman year, he claims he has no further obligation, and would only have one, should there be a specific [fifth] academic year. According to the testimony of the [defendant], Choate Rosemary Hall has no term beyond senior year. While there is some logic to the [plaintiff‘s] interpretation, the better, more logical explanation is that the children are currently in ‘year five’ and that his obligation under the terms of the agreement is 100 [percent] of the tuition, room and board at Choate Rosemary Hall.”
The court also made several findings of fact and conclusions with respect to the disputed expenses paid by the defendant on behalf of the children, specifically, the college coach, the enrichment experience, and the automobile. The court found that, “[i]n years one through four, such expenditures are to be made during their school years, 60 [percent] by the [plaintiff] and 40 [percent] by the [defendant]. However, in year five, in the event that the children are attending boarding school, the [plaintiff] pays 100 [percent]. The [defendant] has offered to the court several exhibits outlining her out-of-pocket expenditure on behalf of the children; the list is very comprehensive, detailing even the smallest, inconsequential items [such] that the court questions her good faith and perspective. In particular, she has made arbitrary expenditures based upon a strict reading of the agreement. As a case in point, the [defendant] made a unilateral decision to use a firm called Preminente as a college
Finally, with respect to the plaintiff‘s claim for attorney‘s fees, the court “reviewed the affidavit of counsel fees . . . dated July 18, 2019, and [found] it to be fair and equitable under all the circumstances.” (Citation omitted.) Because the court “[did] not find the [plaintiff‘s] actions to [rise] to the level of wilful contempt, under all the [circumstances],” the court concluded that “it is equitable and appropriate for the court to award him reasonable attorney‘s fees in the amount of $14,930.”
On the basis of the foregoing analysis, the court denied the defendant‘s motion for contempt. Notwithstanding its denial of the defendant‘s motion for contempt, the court ordered that the “plaintiff . . . pay in full any outstanding tuition and fees for the children‘s senior year at Choate Rosemary Hall and [that] he . . . reimburse the defendant . . . for any tuition and fees that she may have expended for their senior year.” The court also ordered that the defendant pay the plaintiff‘s attorney‘s fees in the amount of $14,930 on the basis of its denial of the motion for contempt. This appeal followed.
I
We first address the defendant‘s claim that the court improperly denied the [defendant‘s] motion for contempt. Specifically, the defendant argues that the relevant portions of the agreement were sufficiently clear and unambiguous so as to support a finding of contempt. We disagree.
We begin by setting forth the legal principles relevant to this claim. “Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . [C]ivil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts. . . . In part because the contempt remedy is particularly harsh . . . such punishment
“It is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts. . . . A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . .
“In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Citation omitted; internal quotation marks omitted.) Dejana v. Dejana, 176 Conn. App. 104, 114–15, 168 A.3d 595, cert. denied, 327 Conn. 977, 174 A.3d 195 (2017).
We conclude, as did the trial court, that the agreement was not a clear and unambiguous order because the language of the agreement is susceptible to more than one reasonable interpretation. Specifically, the agreement is ambiguous as to the commencement date for the financial obligations imposed by the agreement.
In order to determine whether the agreement is clear and unambiguous, we examine the language of the agreement. Article III, which addresses alimony and child support, provides a definitive commencement date for the payment of the award of unallocated alimony and child support. It provides in relevant part: “Commencing on January 1, 2015, and on the first and fifteenth days of each month
On the other hand, article V, which provides for the payment of “[c]hildren‘s [e]xpenses,” does not include a start date for the commencement of the financial obligations contained within it but, rather, indicates the division of payment responsibilities between the plaintiff and the defendant by referencing “years one through four” and “year five . . . .” Article 5.1 provides in relevant part: “In year five, and provided that the children are attending boarding or private school, the [plaintiff] shall pay 100 [percent] of [unreimbursed medical and dental] expenses.” (Emphasis added.) Article 5.2 provides: “If the children, by agreement of the parties, attend boarding or private school, their tuition, room and board, years one through four, shall be paid [60 percent] by the [plaintiff] and [40 percent] by the [defendant]. In year five, tuition, room and board shall be paid [100 percent] by the [plaintiff].” (Emphasis added.) Finally, article 5.3 provides in relevant part: “In year five, if the children are attending boarding school, all of their expenses shall be paid [100 percent] by the [plaintiff].” (Emphasis added.)
We agree with the court that there are two reasonable interpretations of the commencement date for the financial obligations set forth in the agreement. To begin, because article 3.1 clearly states that the plaintiff‘s alimony obligation commenced on January 1, 2015, one logical interpretation is that all of the financial obligations set forth in the agreement also commence on January 1, 2015. Another logical interpretation, however, is that the agreement‘s financial obligations commence on March 4, 2015, the date of the agreement. This interpretation applies principally to the portions of the agreement, including article V, that do not specify a commencement date for the financial obligations that they impose. Because the commencement date for the relevant financial obligations contained within the agreement is susceptible to more than one reasonable interpretation, the agreement is ambiguous with respect to this issue.
Further, the meaning of the words “years one through four” and “year five” for the purposes of article V is ambiguous. Article V provides for the division of the children‘s expenses while they attend boarding school. Instead of referring to specific academic years, such as freshman, sophomore, junior, and senior, article V references “years one through four” and “year five . . . .” In particular, the ambiguity stems from article 5.2, which provides that, “[i]f the children, by agreement of the parties, attend boarding or private school, their tuition, room and board, years one through four, shall be paid [60 percent] by the [plaintiff] and [40 percent] by the [defendant]. In year five, tuition, room and board shall be paid [100 percent] by the [plaintiff].” The way in which this section is written, particularly how it refers to the payment of boarding school tuition and room and board for “years one through four,” creates ambiguity because “years one through four” in this context reasonably could be interpreted to mean the number of years that the children have attended boarding school. Other portions of the agreement, however, measure the years based on the number of years that have passed since the commencement of
Because we determine that the relevant portions of the agreement were not clear and unambiguous orders of the court, we conclude that the court did not err when it concluded that the plaintiff was not in contempt of the order.
II
We next address the defendant‘s claim that the court improperly rewrote the separation agreement and modified the child support order retroactively. Specifically, the defendant argues that the “court improperly modified the . . . agreement by determining that articles 5.3 and 5.4 did not require the plaintiff to pay for [the] children‘s expenses.” We disagree and conclude that the court did not modify the agreement but, rather, properly interpreted the agreement and determined that it did not cover several of the disputed expenses that the defendant unilaterally incurred. These expenses include the used car, the college coach, and the enrichment experience, as well as the hundreds of low monetary value expenses on the defendant‘s itemized list that cannot be characterized as “extracurricular.”
“A trial court in a dissolution action has broad equitable powers under our dissolution statutes. Those powers do not, however, allow the court to rewrite a separation agreement that has been incorporated into the judgment of dissolution.” (Citation omitted.) Eckert v. Eckert, 285 Conn. 687, 696, 941 A.2d 301 (2008). Instead, a court must treat a “separation agreement that has been incorporated into a dissolution decree and its resulting judgment . . . as a contract and [construe the agreement] in accordance with the general principles governing contracts.” (Internal quotation marks omitted.) Dejana v. Dejana, supra, 176 Conn. App. 114.
“When construing a contract, [a court seeks] to determine the intent of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . 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. . . . When only one interpretation of a contract is possible, the court need not look outside the four corners of the contract. . . . Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument. When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact. . . . When the language is clear and unambiguous, however, the contract must be given effect according to its terms, and the determination of the parties’ intent is a question of law.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Isham v. Isham, 292 Conn. 170, 180-81, 972 A.2d 228 (2009).
The defendant claims that the court improperly rewrote the separation agreement and modified the child support retroactively. We disagree. Instead, we conclude that, when interpreting the agreement, the court properly determined that several expenses incurred by the defendant were not expenses that
With respect to this issue, the court noted in its memorandum of decision that “the [defendant] has blurred the lines in her claim, merging, for example, the children‘s snacks, allowance, haircuts, and clothing, to name just a few items that are clearly not ‘extracurricular,’ with some items that arguably fall into that category and are covered by the agreement and, as a result, could be the subject of a motion for contempt. The tuition at Choate Rosemary Hall would be a good example. [Additionally], the specific items that she has claimed, while they may be within the ‘black letter’ of the agreement, were made unilaterally, without the agreement of the [plaintiff], were either unnecessary or an unusually large expenditure (e.g., ‘college coach‘) and, hence, were not made in good faith. Accordingly, the [defendant] should be fully responsible for the cost of the college coach, the car purchased for the children, and the enrichment experience in Jackson, Wyoming.” We analyze each of the disputed expenses in turn.
We first conclude that the plaintiff was not required to reimburse the defendant for the cost of the used automobile because it was not an expense covered by the agreement. We begin by determining whether the agreement was clear and unambiguous as to whether, under article 5.3, the cost to purchase an automobile for the children is a reimbursable expense. As we stated previously in this opinion, whether an agreement is clear and unambiguous is a question of law over which our review is plenary. See, e.g., Isham v. Isham, supra, 292 Conn. 181. We conclude that the contract language at issue is ambiguous because it is reasonably susceptible to more than one interpretation. The portion of article 5.3 on which the defendant relies in requesting reimbursement for the cost of the used automobile provides that the agreement covers “expenses for a child to obtain and hold a license to drive an automobile . . . .” Considering the ordinary meaning of the language in the agreement, it appears that this provision intended to cover expenses such as automobile insurance, driving lessons, other fees associated with obtaining a driver‘s license, or even costs associated with the maintenance of an automobile. The expense to purchase an automobile does not fall within the ordinary meaning of this provision because one does not need to own an automobile in order to obtain and hold a license to drive an automobile. The ambiguity with respect to this provision, however, stems from a parenthetical indicating that the expenses covered by article 5.3 include “car insurance, cars and related fuel and maintenance. . . .” (Emphasis added.) This portion of the agreement is ambiguous because the parenthetical suggests that an automobile is included in the covered expenses under article 5.3, but the language outside of the parenthetical, within its ordinary meaning, does not seem to encompass the purchase of an automobile.
Because “the language of [the agreement] is ambiguous, the determination of the parties’ intent is a question of fact.” (Internal quotation marks omitted.) Isham v. Isham, supra, 292 Conn. 181. The court determined that this clause was “drafted ostensibly to cover expenses for a child to obtain and hold a license to drive an automobile.” (Internal quotation marks omitted.) The court reasoned that “one does not have to own or lease a car in order to obtain and maintain
We now turn to the defendant‘s claims for reimbursement related to the expenses that she incurred for the college coach and the enrichment experience. Although these expenses appear to fall within the literal meaning of article 5.3, our resolution of these claims also requires us to examine whether the court‘s finding that the defendant‘s conduct did not comport with an implicit duty of good faith and fair dealing is supported by the record. “[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party‘s discretionary application or interpretation of a contract term. . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff‘s right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Citations omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004).
We conclude that the court‘s finding that the defendant did not act in good faith under the agreement—with respect to the expense that she unilaterally incurred for the private college coach—was not clearly erroneous, and, therefore, the plaintiff is not required to reimburse the defendant for that expense. The court noted that parties to a separation agreement “should not take unfair advantage of contractual provisions that are wide open or less than clear,” and they should “[honor] the spirit of [the] agreement . . . .” Although the agreement did include “college coaches” as a reimbursable expense under article 5.3, the court determined that the defendant‘s $51,500 expenditure for a private college coach was extravagant and unnecessary, particularly given the fact that Choate Rosemary Hall provides college counseling as part of the tuition package. Because we have determined that there is support in the record for the court‘s finding that the defendant did not act in good faith when she incurred this expense, we conclude that the finding is not clearly erroneous. We therefore conclude that the plaintiff is not required to reimburse the defendant for this expense under the agreement.
We also conclude that the court properly found that the expense that the defendant incurred for the “enrichment experience” was not made in good faith, and, therefore, the plaintiff is not required to reimburse the defendant for that expense under the agreement. The court found that the enrichment program in Jackson, Wyoming, through the Grand Teton National
Finally, we conclude that, on the basis of the plain and unambiguous meaning of the agreement, the plaintiff was not required to reimburse the defendant for the litany of itemized expenses such as snacks, allowances, haircuts, and clothing because these expenses cannot be considered “extracurricular” or related to “[o]rganized [a]ctivities,” and, therefore, they are not covered by article 5.3 of the agreement. Pursuant to the agreement, expenses covered under article 5.3 include “all school related educational, extracurricular and social activities; non-school related educational and extracurricular [activities]; organization/team/program fees, equipment, and team travel related expenses; all organized summer programs including transportation; enrichment programs such as music lessons, sports lessons, and the like; necessary tutors; [and] pre-boarding school and pre-college expenses, including, but not limited to, testing and preparatory classes, tutors, colleges coaches, application fees, [and] travel expenses for pre-application boarding school and college visits . . . .” The defendant, in her itemized list for reimbursement, has outlined hundreds of expenses, merging some expenses that fall under article 5.3 with others that clearly do not. For example, the defendant included in the itemized list many expenses for things such as clothing, snacks, allowances, and haircuts, which clearly are not expenses that can be considered “[e]xtra-curricular . . . .” Having already discussed in detail the higher monetary value items that are the subject of the defendant‘s claims for reimbursement under the agreement, we note that it would serve no useful purpose to individually address in this opinion the hundreds of other, lower monetary value expenses listed by the defendant that are also the subject of this claim. Nonetheless, we have considered each of these expenses and conclude for reasons similar to those already discussed herein, that the court properly found that the plaintiff was not obligated under the agreement to reimburse the defendant for these expenses.
We conclude that (1) the court‘s finding that the parties did not intend for the agreement to cover the cost to purchase an automobile for the children was not clearly erroneous, and, therefore, the court properly determined that the automobile was not an expense covered under the agreement; (2) the court‘s findings that the defendant did not act in accordance with the implied duty of good faith when she incurred the expenses for the college coach and the enrichment experience were not clearly erroneous, and, therefore, the court properly determined that the plaintiff was not required to reimburse the defendant for these expenses under the agreement; and (3) on the basis of the plain meaning of the agreement, the large number of low monetary value expenses on the itemized list, including clothing, snacks, allowances, and haircuts, cannot be considered “[e]xtracurricular,” and, therefore, they are not covered under the agreement. On the basis of these conclusions, we further conclude that the court did not rewrite the separation
III
We next address the defendant‘s claim that the court abused its discretion by failing to find an arrearage with respect to the plaintiff‘s obligation to pay for expenses related to the parties’ children under the agreement10 and enter orders to preserve the integrity of the agreement. As we iterated in part II of this opinion, the court, upon interpreting the agreement, properly concluded that the agreement did not require the plaintiff to reimburse the defendant for several of the disputed expenses that she incurred, and, accordingly, the court did not err in failing to find an arrearage and enter orders with respect to those expenses.
It is well established that, “[i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party‘s failure to comply with the court order.” (Emphasis omitted; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn. App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010). “Courts have in general the power to fashion a remedy appropriate to the vindication of a prior . . . judgment. . . . Having found noncompliance, the court, in the exercise of its equitable powers, necessarily ha[s] the authority to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Pressley v. Johnson, supra, 173 Conn. App. 408. “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.” (Internal quotation marks omitted.) Fuller v. Fuller, supra, 115.
The court did not abuse its discretion when it did not enter orders requiring the plaintiff to reimburse the defendant under article 5.3 of the agreement for particular “[c]hildren‘s expenses” that the defendant unilaterally incurred. For the reasons set forth in part II of this opinion, the court properly concluded that the expenses that the defendant unilaterally incurred for the numerous itemized expenses, including snacks, allowances, haircuts, and clothing, as well as the used automobile, the college coach, and the enrichment experience, were either not covered under article V of the agreement or were not made in good faith. Therefore, the court did not abuse its discretion when it did not enter orders requiring the plaintiff to reimburse the defendant for such expenses.11
The defendant next claims that the court erred in concluding that he was not entitled to reimbursement for the cost of the children‘s dental procedures performed by an out-of-network oral surgeon. Specifically, the defendant claims that, in denying reimbursement for the cost of the out-of-network dental procedures, the court relied on findings of fact that were clearly erroneous. We disagree.
The following additional facts are relevant to this claim. At the evidentiary hearing conducted by the court on December 4 and 6, 2019, both the plaintiff and the defendant testified with respect to the disputed expenses for the children‘s dental procedures. The defendant testified that the children “needed to get their wisdom teeth pulled. I asked [the plaintiff] to make an appointment. He didn‘t. I finally did because they had an infection. They had an appointment in . . . April, and a week before my appointment, [the plaintiff] told the kids that he had an appointment for them the next day with an in-network oral surgeon. . . . I ultimately took them to the [out-of-network] dentist, the oral surgeon who [one of the children] had previously had his teeth pulled by, and [the plaintiff] refused to make the payment for an out-of-network oral surgeon.” The defendant further testified that the expense for the oral surgeon was incurred in April, 2018. She also testified that she charged the plaintiff 60 percent of the total cost of the procedures but that he paid her only $900, and that “[h]e insisted that we use an in-network, [nonboard] certified oral surgeon.” When asked on cross-examination about whether the plaintiff sent her a list of in-network dentists to be used for the dental procedure, the defendant replied, “[y]es, the night before the appointment.” Further, when asked whether the agreement stated that “each party shall obtain the agreement of the other when a child requires nonemergency, nonroutine medical treatment but such approval shall not unreasonably be withheld,” the defendant indicated that the agreement did so provide. Finally, the defendant indicated during cross-examination that the plaintiff did not agree with her unilateral choice of an out-of-network dentist and that the plaintiff told her that he would be willing to share the cost to have an in-network dentist to perform the procedure.
The plaintiff testified that the first time he learned that the children needed oral surgery was in mid-April, 2018. The plaintiff testified that, after learning that the children needed oral surgery: “I obtained copies of their dental X-rays. I researched available dentists. . . . I spoke to a dentist on the phone in Stamford, a Dr. William Kim. I went and, in person, met with . . . Kim, [and] showed him the X-rays . . . .” The plaintiff further testified that Kim is an in-network, board certified dentist. After obtaining information from Kim during the initial meeting, the plaintiff testified that he scheduled an appointment for the children to have the necessary procedure performed. The plaintiff testified that, after he made the appointment, he “notified [the defendant] of the date of the appointment and of the doctor‘s name and bio.” This notification occurred in the “[m]id-dle of April.” The plaintiff further testified that the defendant instead took the children to an out-of-network oral surgeon of her choosing in early June. When asked if he knew why the defendant did not meet or confer with the in-network, board certified dentist that the plaintiff had referred to her, the plaintiff testified that the
With respect to the dental expenses, the court found that “[t]he parties do not appear to have a dispute as to the application of their respective shares of these expenses but, rather, to specific expenditures. For instance, the [defendant] seeks 100 [percent] reimbursement from the [plaintiff] for a dental procedure for the children. The [plaintiff] had made long-standing arrangements for the procedure to be done by an in-network dentist, and, at the last minute, the [defendant] arbitrarily changed to an out-of-network oral surgeon, claiming that it was an emergency. The dental surgeon‘s bill was $5775. . . . The [defendant] did not offer any credible evidence or expert testimony as to the nature of the procedure and much less the necessity that it be performed quickly and by whom. Under all the circumstances, it would be unfair to make the [plaintiff] bear the entire cost over and above the normal charges that he had already made arrangements to have done.” (Citation omitted.) The court ultimately determined that “[t]he [plaintiff‘s] liability for the dental surgery should be limited to 60 [percent] of the cost of the procedure performed by the in-network dentist or oral surgeon.”
The defendant claims that the court erred in concluding that she was not entitled to full reimbursement for the cost of the dental procedures performed by the out-of-network oral surgeon because the court made and relied on findings of fact that were clearly erroneous with respect to the dental procedure. In her brief, the defendant asserts that, “[b]ased on the evidence, the trial court found, [t]he [plaintiff] had made long-standing arrangements for the [dental] procedure to be done by an in-network dentist, and, at the last minute, the [defendant] arbitrarily changed to an out-of-network oral surgeon, claiming that it was an emergency. . . . The trial court proceeded to find that it would be unfair for the [plaintiff] to pay the entire cost of [the] oral surgery, above the amount he would have paid for the in-network dentist. . . . The trial court accordingly denied the relief sought, which was reimbursement of $2450 under article 5.1. . . . The trial court‘s denial of the reimbursement request was based on clearly erroneous findings of fact.” (Citations omitted; emphasis added; internal quotation marks omitted.)
Our review of this claim requires us first to determine whether the facts as found by the court are clearly erroneous and then to interpret the language of the agreement. As we stated previously in this opinion, a separation agreement that has been incorporated into a dissolution decree and its resulting judgment are treated as a contract and construed in accordance with the general principles governing contracts. See, e.g., Dejana v. Dejana, supra, 176 Conn. App. 114. “The standard of review for the issue of contract interpretation is well established. When . . . there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Accordingly, our review is plenary. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court‘s decision is challenged we must determine whether the facts set out in the memorandum of decision
We conclude that the findings of fact made by the court with respect to this claim were not clearly erroneous. The plaintiff testified that he scheduled an appointment for the children to have their teeth extracted by an in-network dentist. The plaintiff testified that he then notified the defendant of the date of the appointment. The plaintiff further testified that the defendant instead took the children to an out-of-network oral surgeon whom she had chosen for an appointment that occurred after the date on which the plaintiff had scheduled the appointment for the children‘s procedures with the in-network dentist. On the basis of the plaintiff‘s testimony, there was evidence in the record to support the court‘s finding that the plaintiff made arrangements for the procedure to be done by an in-network dentist and that, instead, the defendant insisted that the procedures be performed by an out-of-network oral surgeon, claiming that it was an emergency. Further, it is clear from the record that the defendant did not offer any credible evidence or expert testimony as to the nature of the procedure or the necessity that it be performed quickly and by a particular oral surgeon. On the basis of our review of the entire record, we are not persuaded that a mistake has been committed. The findings of the court with respect to the dental procedures, therefore, are not clearly erroneous.
Having concluded that the facts, as found by the court, were not clearly erroneous, we next interpret the language of the agreement to determine whether the court erred in concluding that the defendant was not entitled to reimbursement for the cost of the children‘s dental procedures. Article 5.1 of the agreement specifically addresses the payment of the children‘s unreimbursed medical and dental expenses. It provides: “The [plaintiff] shall pay [60 percent] and the [defendant] shall pay [40 percent] of any reasonably incurred, unreimbursed or uninsured medical expense for the benefit of the children. In year five, and provided that the children are attending boarding or private school, the [plaintiff] shall pay [100 percent] of said expenses. Each party shall obtain the agreement of the other when a child requires non-emergency, non-routine medical treatment, but such approval may not unreasonably be withheld. The parties shall account to each other and make payments to each other in accordance with this obligation on a quarterly basis. Both parties may submit claims directly to the insurer, and reimbursement to the party who advanced payment shall be made within [ten] days after submission of proof of payment.” We conclude that the court did not err when it determined that the plaintiff‘s liability for the dental surgery should be limited to 60 percent of the cost of the procedure performed by the in-network dentist or oral surgeon.
Under the definitive language of the agreement, “[e]ach party shall obtain the agreement of the other when a child requires non-emergency, non-routine medical treatment, but such approval may not unreasonably be withheld.” Because the
V
Finally, the defendant claims that the court abused its discretion by ordering her to pay attorney‘s fees to the plaintiff under
“Moreover, because the award of attorney‘s fees pursuant to
On appeal, “[w]e review a trial court‘s [ruling] as to attorney‘s fees . . . for an abuse of discretion. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court‘s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Gil v. Gil, supra, 110 Conn. App. 802-803.
We conclude that the court did not abuse its discretion when it awarded the plaintiff attorney‘s fees in the sum of $14,930. Because the court “found [the plaintiff] not to be in contempt of [the] order,” it could, in its discretion, “award a reasonable attorney‘s fee to [the plaintiff].”
Moreover, the court made several factual findings with respect to the defendant‘s behavior, which are relevant to the issue of attorney‘s fees. The court noted that “the [defendant] has offered to the court several exhibits outlining her out-of-pocket expenditures on behalf of the children, the list is very comprehensive, detailing even the smallest, inconsequential items [such] that the court questions her good faith and perspective. In particular, she has made arbitrary expenditures based upon a strict reading of the agreement.” (Emphasis omitted.) The court also noted that operation of the agreement “relies upon the good faith and good judgment of each of the parties, something the [defendant] has clearly not exercised.” (Emphasis added.) It is clear that the court considered the behavior of the defendant, namely, her lack of good faith in making expenditures under the agreement, when it awarded attorney‘s fees to the plaintiff. This was a proper consideration for the court because attorney‘s fees under
The fact that the court ordered the plaintiff to reimburse the defendant under the agreement does not impact the court‘s ability to award attorney‘s fees to the plaintiff as the prevailing party on the issue of contempt. It is well established that “[c]ourts have in general the power to fashion a remedy appropriate to the vindication of a prior . . . judgment. . . . Having found noncompliance, the court, in the exercise of its equitable powers, necessarily ha[s] the authority to fashion whatever orders [are] required to protect the integrity of [its original] judgment. . . . This is so because [i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party‘s failure to comply with the court order.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Pressley v. Johnson, supra, 173 Conn. App. 408.
In the present case, as we explained previously in this opinion, the court did not find the defendant in contempt of the order because it determined that the agreement was not clear and unambiguous. Upon so finding, the court had the authority, in the exercise of its equitable powers, to fashion an order designed to protect the integrity of the dissolution judgment. To that end, the court ordered that the plaintiff pay any outstanding tuition for the children‘s senior year of boarding school and reimburse the defendant for any tuition that she had already paid for that year. Notwithstanding this order, because the plaintiff was the prevailing party on the issue of contempt, the court had the discretion, under
The judgment is affirmed.
In this opinion the other judges concurred.