Opinion
No. FA-98-0067946-S
October 16, 2007
Ruling on Motion to Strike
The plaintiff ex-wife has filed a pro se motion to modify the alimony and the college cost provisions of her dissolution agreement (#164). On October 10, 2007, the defendant ex-husband filed a motion to strike the plaintiff's motion to modify. The Practice Book provides for motions to strike in family cases only to attack the complaint, cross complaint, or answer, or for cases of improper nonjoinder. See Practice Book § 25-16. Because there is no explicit authority for a motion to strike another motion in family cases, the court will treat the defendant's motion as simply an objection to the plaintiff's motion.
I
The main thrust of the defendant's objection is that the court lacks authority to modify the provisions of the agreement regarding post-majority educational support. The relevant facts are as follows. The parties entered into a dissolution agreement on June 30, 2000, which the court, Klaczak J., approved and incorporated into the judgment on that day. In section 3.3 of the 2000 agreement, the parties provided that each would pay one-half of the cost of post-secondary education for their two sons, capped at the rate charged for in-state students at the University of Connecticut. In section 14.1, the parties provided that "[n]o modification or waiver of any terms of this Agreement shall be valid unless in writing and executed with the same formalities as this Agreement."
On May 1, 2006, the parties filed what they labeled a "Post-Judgment Agreement," which bears the signatures of both parties and their attorneys, and which the court, Swords, J., approved on that day. The 2006 agreement changed the prior provisions regarding primary residence of the children, child support, and visitation. In paragraph 9, the parties again provided that each would pay one-half of the post-secondary educational costs. Paragraph 9 added a clause in which the plaintiff agreed to cooperate in the completion and submission of college applications and related forms. Paragraph 10, the final paragraph of the agreement, provided that "[t]he parties' Agreement dated June 30, 2000, which was adopted and incorporated into the Decree of Divorce, shall otherwise remain in full force and effect."
Subsection (h) of Section 46b-56c of the General Statutes, entitled "Educational Support Orders," provides that "[o]n motion or petition of a parent, an educational support order may be modified or enforced in the same manner as is provided by law for any support order." Subsection (k), however, states that "[t]he provisions of this section shall apply only in cases when the initial order for parental support of the child is entered on or after October 1, 2002." Because in this case the initial order for support was entered in 2000, Section 46b-56c does not apply.
Subsection (b) of Section 46b-66, entitled in part "Review of agreements; incorporation into decree," provides that "[a]greements providing for the care, education, maintenance or support of a child beyond the age of eighteen entered into on or after July 1, 2001, shall be modifiable to the same extent as any other provision of any order or decree in accordance with section 46b-86." The defendant argues that this section does not apply because the "agreement" in question is the 2000 dissolution agreement rather than the 2006 postjudgment agreement. The court does not agree. Section 46b-66(b) refers only to "[a]greements" and not to "the initial order," as in § 46b-56c(k). There is no language in § 46b-66(b) limiting the agreement in question to agreements entered at the time of the dissolution, or precluding the agreement in question from being a postjudgment agreement. The June 2006 document in this case is labeled "Post-Judgment Agreement," it is signed by both parties and their attorneys, and it received court approval. It is therefore an "agreement" within the meaning of § 46b-66(b).
The existence of a post-2002 agreement that is subject to § 46b-66(b) distinguishes this case from cases such as Fusco v. Fusco, 266 Conn. 649, 651, 835 A.2d 6 (2003); Miner v. Miner, 48 Conn.App. 409, 409-10, 709 A.2d 605 (1998); and Aliberti v. Aliberti, Superior Court, judicial district of New Britain, Docket No. FA-98 0489052 (June 27, 2006, Graham, J.) [41 Conn. L. Rptr. 578], relied on by the defendant, all of which involved pre-2002 agreements. Under the law governing pre-2002 postmajority educational support agreements, such a provision could only be modified when a written agreement specifically allowed for such. See Fusco v. Fusco, supra, 654 ("Connecticut courts have repeatedly held that, pursuant to § 46b-66, a prerequisite to a court's modification of postmajority support is a written agreement providing for modification by the court, whether it is contained in a separation agreement that is then incorporated into the judgment of dissolution or exists as a separate agreement") (internal quotation marks omitted); Miner v. Miner, supra, 418 (trial court had no authority "to modify the written agreement incorporated in the dissolution decree as it pertains to postmajority support and education without a written agreement signed by both parties giving the court the authority to modify the agreement or by the parties themselves modifying the agreement"); Aliberti v. Aliberti, supra, Superior Court, Docket No. FA-98 0489052 ("This court's authority to act with regard to the requested modification is solely dependent upon whether the parties have agreed, in writing, to allow modification of the separation agreement by the court").
Section 46b-66(b) provides for modification of postmajority educational support orders "to the same extent as any other provision of any order or decree in accordance with section 46b-86." Section § 46b-86(a), in turn, is entitled "Modification of alimony or support orders or judgments." It provides, in essence, for modification "upon a showing of a substantial change in the circumstances of either party . . ." The defendant, however, relies on the introductory phrase of subsection (a), which provides for authority to modify "[u]nless and to the extent that the decree precludes modification . . ." The defendant contends that section 14.1 of the 2000 decree, which the 2006 agreement did not alter, precludes modification absent a written agreement of the parties.
In interpreting the introductory clause in § 46b-86(a), our Supreme Court has stated:
Even if preclusive language exists, however, because of inequities between the parties that may be inherent in the bargaining process of support agreements, and because of the volatile nature of respective personal circumstances, it has been recognized judicially that [p]rovisions which preclude modification of alimony [or support] tend to be disfavored . . . For example, support orders can be modified in spite of preclusion provisions when those provisions are ambiguous . . . and when the rights of interested parties are not protected adequately by the separation agreement.
(Internal quotation marks and citations omitted.) Amodio v. Amodio, 247 Conn. 724, 730, 724 A.2d 1084 (1999). In the present case, the preclusion provision in section 14.1 is at best ambiguous. While it clearly requires that any agreement of the parties to modify be in writing, it does not specifically address whether one party can unilaterally seek court approval of a modification by filing a motion to modify. Because of this ambiguity, and because courts should disfavor clauses purporting to preclude modification of support orders, the court concludes that section 14.1 does not preclude modification of the provision for postmajority educational support. Id. The defendant's objection is therefore overruled and the issue should be resolved at an evidentiary hearing.
II
The defendant also objects to the plaintiff's motion insofar as it seeks to modify alimony. The defendant relies on paragraph 4 in the 2006 agreement, which provides that "[t]here shall be no motion to modify alimony based upon the current financial circumstances of the parties." The defendant contends that the plaintiff has not clearly alleged any change of circumstances that has arisen since the time of that agreement.
Because the defendant's motion to strike the plaintiff's motion is not a recognized pleading, there is no need for the court to conduct the standard inquiry on a motion to strike and examine the sufficiency of the allegations in the plaintiff's pleading. It is sufficient to note, in view of section 4 of the 2006 agreement, as well as the provisions of § 46b-86(a), that, at the evidentiary hearing, the plaintiff will have to prove a "substantial change in the circumstances" from those existing in June 2006 to justify a modification of alimony. General Statutes § 46b-86(a).
III
The defendant's objections are overruled. The matter is referred to the family relations office to attempt to resolve the matter and to the clerk for setting a date for any necessary evidentiary hearing.
It is so ordered.