Opinion
No. FA05-4005415S
March 23, 2010
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court on August 15, 2006. At that time, the court issued a Memorandum of Decision (#145) which, inter alia, under paragraph 16 thereof, reserved jurisdiction to enter an educational support order pursuant to General Statutes § 46b-56c. In addition, under paragraph 17 thereof, the court also referenced the use of certain funds set aside for the children pursuant to General Statutes § 45a-557 et seq. (Otherwise known as the "Uniform Transfers to Minors Act," or "UTMA") "Which shall be utilized for the payment of each child's college expenses for four (4) years of college." The parties have three children, to wit: Matthew Bock, born November 12, 1987; John Bock, born April 10, 1989; and Dana Bock, born December 11, 1992.
Subsequent to the dissolution, on January 29, 2007, the parties entered into a Stipulation (#161.10), in paragraph 9 of which, they each agreed to contribute $7,500.00 to Matthew's college education, provided that he complies with the provisions of the Educational Support Statute (General Statutes § 46b-56c(e)). The husband agreed to pay his share for Matthew's education directly to Ashland University, and both agreed that "thereafter" each would contribute $7,500.00 by July 1 of each year. The obligation was capped by reference to the expenses at the University of Connecticut ("UConn"), and the $7,500.00 limit for each was the parties' estimate of what UConn would cost at that time (i.e., $15,000.00 per annum). This agreement was approved by the court.
General Statutes § 46b-56c(e) provides: "To qualify for payments due under an educational support order, the child must: (1) enroll in an accredited institution of higher education or private occupational school, as defined in section 10a-22a, (2) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment; (3) maintain good academic standing in accordance with the rules of the institution or school; and (4) make available all academic records to both parents during the term of the order. The order shall be suspended after any academic period during which the child fails to comply with these conditions."
Later, by motion dated February 6, 2008, the wife moved for a modification of the order due to a change of circumstances, namely an increase in tuition. The parties, again entered into a Stipulation (#172.10) dated June 2, 2008, which was also approved by and made an order of the court. The Stipulation broke new ground, in that it provided that, for each child, the parties would each deposit the sum of $10,200.00 into a separate UTMA account by July 1, 2008, from which the wife would write the checks. In the event that a child was not attending school, a refund was to be made to the husband if, after a year, the child did not return to college. Contributions to future years were to be tied to the tuition, room and board at the University of Connecticut.
This provision is contrary to UTMA which provides, in part: "A transfer made pursuant to section 45a-558f is irrevocable, and the custodial property is indefeasibly vested in the minor . . ." General Statutes § 45a-558h(b).
The evidence showed that a deposit in the amount of $9,700.00 was made by the husband to John's account, and $2,200.00 into Matthew's account, leaving a balance due for the 2007-08 academic year. At some point, Matthew left Ashland University to attend Norwalk Community College and is currently living at home. Tuition is considerably less than at Ashland, however, the wife seeks reimbursement for his expenses while living with her.
The husband made a Motion for Modification (#175.00) dated August 14, 2009, and the wife countered with a Motion for Contempt (#177.10) dated September 4, 2009. The matter was heard over the course of two days, when the evidence closed on January 21, 2010.
DISCUSSION
The question faced by this court is whether or not it is appropriate to exercise jurisdiction to modify, or enforce by way of contempt, two post-majority support orders entered by the court subsequent to the entry of the decree dissolving the marriage, both of which provide for the college education of the children of the marriage. Whether by motion of a party or sua sponte by the court, "once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." Cadle Company v. D'Addario, 268 Conn. 441, 444 (2004). The Superior Court clearly has subject matter jurisdiction to hear family matters concerning pursuant to General Statutes § 46b-1 Amodio v. Amodio, 247 Conn. 724, 727-29 (1999). However, even though the court has subject matter jurisdiction, it must be exercised within the statutory framework. Rosenfeld v. Rosenfeld, 61 Conn.App. 112, 115-17 (2000).
In general, the duty of a parent to provide support for a child ceases when that child reaches his or her majority or their earlier emancipation. General Statutes § 1-1d provides that "the `age of majority' shall be deemed to be eighteen years." Thus, where an order requires the payment of child support beyond the age of majority, "it is of no force and effect as a court order." Kennedy v. Kennedy, 177 Conn. 47, 52 (1979); Louney v. Louney, 13 Conn.App. 270, 275 (1988) (post-majority order regarding "educational needs"). However, the legislature has extended that obligation in several distinct situations, such as where a child is still in high school on their eighteenth birthday. General Statutes § 46b-84(b); or where a child has certain mental or physical disabilities. General Statutes § 46b-84(c); as well as where the parties have agreed to do so in writing. General Statutes § 46b-66. More recently, provision was made for the court to enter a post-majority educational support order, in the absence of a waiver by the parents, either at the time of the entry of the decree dissolving the marriage or later, provided the court has reserved jurisdiction to do so at that time. General Statutes § 46b-56c, et seq.
In the first place, public policy is determined, not by the courts, but rather by the legislature. For a court to do so, it would be "exceeding [its] constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments." State v. Reynolds, 264 Conn. 1, 79 (2003). "When construing a statute, . . . [the] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . ." Fine Homebuilders, Inc. v. Diane Perrone et al., 98 Conn.App. 852, 856 (2006). In order to ascertain the meaning of the statute, the court is first directed to apply the "plain meaning rule" as set forth in General Statutes § 1-2z, in which it must look to "the text of the statute itself and its relationship to other statutes." In the discharge of this duty, the court starts with the presumption that the legislature has enacted "legislation that renders the body of law coherent and consistent." Loughlin v. Loughlin, 280 Conn. 632, 644 (2006).
General Statutes § 1-2z. Plain meaning rule. The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
There is a strong public policy regarding the obligation of parents to provide support for their minor children, General Statutes § 46b-84(a), and as such, our courts "have construed broadly statutes providing for parental support of minor children." Guille v. Guille, 196 Conn. 260, 266 (1985). (Emphasis added.) General Statutes § 46b-66, which extends that obligation where the parents have agreed to do so in writing, provides, in relevant part:
"(a) In any case under this chapter where the parties have submitted to the court an agreement concerning the . . . education . . . of any of their children . . . If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d." (Emphasis added.)
As such, General Statutes § 46b-66 is clearly a modification of the common-law duty to support minor children.
Where a court must make a determination whether or not a statute abrogates or modifies the common law and, "the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope." Guille v. Guille, Supra, 266. Once such an order is entered, a court has the power to modify a written post-majority support order "whether it is contained in a separation agreement that is then incorporated into the judgment of dissolution or exists as a separate agreement." (Emphasis added.) Fusco v. Fusco, 266 Conn. 649, 654 (2003).
Likewise, General Statutes § 46b-56c is a modification of the common-law duty to support minor children. Thus, in order for the order or decree to be a valid "educational support order," the statute must be strictly followed. The Connecticut Appellate Court has held that a valid educational support order must contain the following provisions: (1) a limitation of no more than four full academic years leading to a bachelor's or other undergraduate degree; (2) must terminate on a date not later than the 23rd birthday of the child; (3) must limit the expenditure to an amount not to exceed that charged to a full-time-in-state student at the University of Connecticut; and (4) must not call for the expenditure of monies for expenses not specifically covered by the statute. Kelman v. Kelman, 86 Conn.App. 120, 124-26 (2004).
Considering all of the evidence, each of the agreements reached by the parties, although purporting to be "educational support orders," and entered as orders of the court, fall short in one or more respects. For instance, neither agreement contains the language limiting the order to children who have not yet reached the age of twenty-three, nor does either limit the obligation to a maximum of four academic years. Accordingly, neither is an "educational support order." That being the case, if a post-judgment order is not deemed to be a valid "educational support order," per se, the question becomes: Does the reservation in the original judgment to enter a future educational support order, preserve the jurisdiction of the court to entertain such a post-majority support agreement under General Statutes § 46b-66? In brief, the conclusion of this court is that it does not.
In its analysis, the court has sought to reconcile the specific authority granted to the court under General Statutes § 46b-56c to enter an "educational support order," as defined therein, post-judgment, with the provisions of General Statutes § 46b-66, in which the legislature has provided for the enforcement and modification of written post-majority support agreements, in this case, also providing for the college education of the children. In doing so, courts are "guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law," which "requires us to read statutes together when they relate to the same subject matter." Hatt v. Burlington Coat Factory, 263 Conn. 279, 310 (2003).
The logical reading of General Statutes § 46b-66 leads this court to conclude that a written agreement to support a child post-majority, including college education, must be presented to the court at the time of the entry of the original order for incorporation therein. Otherwise, a court loses jurisdiction to entertain a motion for modification of it. Bonhotel v. Bonhotel, 64 Conn.App. 561, 570-71 (2001) (interpreting General Statutes § 46b-66, prior to the enactment of General Statutes § 46b-66(b)). Were that not the case, the legislature would not have had to enact General Statutes § 46b-56c, since its provisions could easily be circumvented by the submission of a noncompliant written agreement at anytime post-judgment. Moreover, the latter statute goes to great pains to explicitly set forth the parameters of any such order for educational support. It is a condition precedent that, absent an order entered at the time of the decree or a reservation of a future right to do so, the court has no power to enter such an order in the future. So important are these ground rules, that the statute requires that the parents make a knowing waiver of the right at the hearing, and the failure to so advise them is error on the part of the court. Robinson v. Robinson, 86 Conn.App. 719, 726-27 (2004).
The basis for each statute differs, in that an agreement made pursuant to General Statutes § 46b-66 is treated as a contract and interpreted and enforced as such, Sablosky v. Sablosky, 72 Conn.App. 408, 415 (2002); whereas an educational support order under General Statutes § 46b-56c can result from, either an agreement or an order of the court after hearing, provided the parties have invoked the provisions of the act. Histen v. Histen, 98 Conn.App. 729, 734, fn. 4 (2006) (Written agreement incorporated in the decree, presumably under General Statutes § 46b-66, not an "educational support order" nor enforced as such).
In the present case, the trial court specifically reserved jurisdiction to enter an "educational support order," and without any testimony and evidence to the contrary, this court presumes that the trial court based its order on the finding that it was "more likely than not that the parents would have provided support to the child for higher education or private occupational school if the family were intact." Although the Memorandum of Decision is silent on this point. Such a finding would have been borne out by the subsequent actions of the parties in presenting two agreements to the court, each providing for post-majority educational support, each of which was approved and entered as an order. However, the orders entered by the court did not comply with the statute, and as such were not "educational support orders." Since no post-majority support order was entered by the parties at the time the dissolution decree was entered pursuant to General Statutes § 46b-66, the court lacked the statutory authority to enter or modify anything other than a valid "educational support order." Loughlin v. Loughlin, 280 Conn. 632, 658-59 (2006). However, since a reservation of jurisdiction was made in the Memorandum of Decision, neither party is precluded from seeking the entry of a proper educational support order in the future. General Statutes § 46b-56c(b).
ORDER
For the foregoing reasons, the Motion for Modification (#175.00) dated August 14, 2009, and the Motion for Contempt (#177.10) dated September 4, 2009, are HEREBY DISMISSED for lack of jurisdiction.