Opinion
No. FA97-0138956S
July 23, 2004
MEMORANDUM OF DECISION
Pursuant to a stipulated agreement, the court, Doherty, J., entered a judgment of dissolution on August 7, 1997. The judgment, which reflected the written agreement of the parties, provided that the defendant was to pay $360 per week in unallocated alimony and support to the plaintiff. The judgment further provided that as to child support: "Child support will continue for each child until the age of 21 years if the child remains a full-time student. Child support will otherwise end at the time of high school graduation, the last day of June at the graduation year." At the time the judgment was entered, the parties had three minor children, James Christopher Hornyak (DOB October 17, 1979), Caitlyn Marie Hornyak (DOB May 2, 1982), and Joseph Edward Hornyak (DOB September 9, 1985). As to alimony, the agreement provided: "Payment of alimony will cease at the time of the husband's death or the remarriage of the wife."
On January 26, 1998, the plaintiff filed a motion for contempt against the defendant for failure to pay in full the unallocated order. On March 9, 1998, the court, Doherty, J., accepted a stipulated agreement from the parties. The parties agreed that the arrearage amount owed by the defendant was $2125. The parties also agreed that the defendant would pay that arrearage amount at a rate of $10 per week, thus increasing his monthly alimony and support obligation to the plaintiff to $370 per week. On June 8, 1998, the defendant filed a motion for modification on the ground that there was a substantial change in circumstances. The court, Doherty, J., granted the defendant's motion on July 13, 1998, having found that Christopher obtained the age of eighteen years and was not a full-time student, and the defendant was unemployed. In its order, the court terminated the defendant's support obligation for Christopher and reduced his payment obligation to $175 per week for the remaining two minor children.
The plaintiff's motion for contempt also alleged that the defendant failed to comply with other provisions of the agreement. These provisions of the agreement do not affect the motion for modification that is before the court and, therefore, will not be discussed.
Following the modification on June 8, 1998, several motions were filed by the plaintiff and the defendant. Of significance to the court, on April 28, 2000, the court, Leheny, J., ordered that the defendant was to continue to pay $175 per week to the plaintiff as unallocated alimony and support. On October 16, 2003, the defendant filed the present motion for modification of child support post-judgment (#161). In the defendant's motion, he alleged that there was a substantial change in circumstances in that "[Caitlyn] has attained the age of 21 years old and the parties' child [Joseph] has attained the age of eighteen and is no longer a full-time student." (Defendant's Motion for Modification of Child Support Post-judgment, p. 2.) The defendant also filed a motion for modification of alimony post-judgment (#162), alleging that the plaintiff was cohabiting with an unrelated adult who is financially supporting her.
On December 2, 2003, the court ordered that the parties seek clarification from an order entered by the court, Doherty, J., on July 13, 1998. In furtherance of that order, on December 19, 2003, the plaintiff filed a motion for clarification as to whether the order from the court, Doherty, J., dated July 13, 1998, modifying the support payment to $175 per week, transformed the unallocated order into an allocated order. The parties, upon reviewing the transcripts and orders of Judge Leheny from April 28, 2000, were satisfied that the existing order continues the unallocated order of alimony and child support. The court agrees and concludes that its request for clarification is moot.
At the hearing on February 23, 2004, the parties conceded that the existing order was an unallocated order of alimony and child support. The plaintiff requested that her motion for clarification be withdrawn. Again, in the plaintiff's objection to the defendant's motion for order of sanctions (# 173), the plaintiff requested that her motion for clarification, dated December 19, 2003, be marked off.
Preliminarily, the court addresses the plaintiff's argument that the defendant's motion for modification is not properly before the court. In her objection, the plaintiff argues that the support order is an unallocated order of alimony and child support. As such, the plaintiff argues that any request for modification must be addressed to the entire unallocated order. In other words, the plaintiff contends that the defendant cannot file a separate motion for modification of child support and one for alimony because these separate orders do not exist.
The court finds that the plaintiff's argument is a tortured one. The plaintiff would have the court dismiss the defendant's motion for modification because the caption of each of his motions sets out the specific relief sought. If the court were to follow the plaintiff's logic, then the defendant would be required to refile the same motion, albeit, with a different heading that reads motion for modification, but seeking the same relief with respect to child support and alimony. The court is not persuaded by this line of logic. Moreover, the plaintiff failed to provide the court with any legal support for this proposition or make a claim that she was unaware of the defendant's requested relief or his reasons for requesting same. Thus, in the interest of judicial economy, the court finds that despite the caption of the defendant's two motions, they may be heard by the court.
The court, however, limits its decision to the issue of modification of child support. The transcript from the hearing dated December 1, 2003, is clear that the issue before the court was a modification of the defendant's obligation to support his children. At the onset of the hearing, the court asked "[t]he calendar shows motion 161 which appears to be a motion for modification of child support post-judgment. Is that correct?" (Transcript, December 1, 2003, p. 1.) In response to the court's initial inquiry, the plaintiff's attorney responded in the affirmative. (Transcript, December 1, 2003, p. 1.) Although the defendant also filed a motion for modification directed at alimony (#162), the defendant did not make any representations that the issue of alimony was also before the court. Rather, the defendant's attorney indicated to the court that she was only proceeding on the modification of child support. The record also indicates that the evidence and testimony presented by counsel at the hearing on December 1, 2003, was directed solely at the defendant's obligation to support his children. Likewise, when the matter was continued on December 2, 2003, the issue of alimony was neither discussed nor was any evidence offered in support of it. That notwithstanding, the parties entered into a written stipulation on July 8, 2004 that alimony shall cease, effective January 1, 2004, and that the only issue to be decided by the court is the defendant's motion for the modification of child support.
At one point during the hearing, the defendant's attorney made a reference to the court that she would be seeking the termination of all of the financial orders. (Transcript, December 2, 2003, p. 33.) The court reiterated that the only matter before the court was a motion for modification of child support # 161.
Turning to the merits of the case, the defendant seeks to terminate his obligation to support his children under the terms of the separation agreement. "Where a judgment incorporates a separation agreement, the judgment and agreement should be construed in accordance with the laws applied to any contract . . . The interpretation of the agreement is a search for the intent of the parties. This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained." (Internal quotation marks omitted.) Kolkmeyer v. Kolkmeyer, 18 Conn.App. 336, 340, 558 A.2d 253 (1989). "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.). Fusco v. Fusco, 266 Conn. 649, 655, 835 A.2d 6 (2003).
Under the terms of the agreement, the defendant was obligated to support his children until either the child obtained the age of twenty-one years or if prior to obtaining twenty-one years, the child was no longer enrolled as a full-time student. The parties agree that the language in the stipulated agreement is clear. They disagree, however, whether the definite and discernable event for termination applies to Joseph.
At the hearing, the court heard testimony and received evidence concerning Joseph's status as a full-time student. The defendant argued that his support obligation for Joseph should terminate because Joseph is no longer enrolled as a full-time student. The defendant testified to the following: Joseph has not graduated from high school; Joseph was not enrolled full-time in a high school; and Joseph was enrolled in a G.E.D. program. (Transcript, December 1, 2003, p. 5.) The defendant presented no evidence or further testimony. On cross examination by the plaintiff's attorney, the defendant testified that he received a letter from the Middletown Adult Education Center concerning Joseph's status as a student. The letter, dated November 7, 2003, was entered into evidence as a full exhibit. The letter indicated that Joseph was enrolled as a full-time student in the school's high school credit diploma program. Based on the evidence and testimony in the record, it is found that Joseph is currently enrolled as a full-time student. As such, under the terms of the divorce agreement, the defendant's obligation to support Joseph has not yet terminated.
As to Caitlyn, neither party disputes that the defendant's obligation to provide support for her ended on May 2, 2003, when she obtained the age of twenty-one years. The parties disagree, however, whether modification should be retroactively applied. In his motion for modification, the defendant argues that modification of support for Caitlyn should be applied retroactively to May 2, 2003, the date in which she obtained twenty-one years. The defendant argues that when a separation agreement is incorporated into a divorce judgment, the agreement is a contract and governed by contract law. The defendant claims that he fully performed his obligation to support Caitlyn as of May 2, 2003. The defendant contends that any termination of child support must be measured by the agreed-upon date in the contract, i.e., when a child obtains twenty-one years. Thus, the defendant argues that to effectuate the agreement, retroactive modification to May 2, 2003, is the only possible result because setting a different date would be contrary to the explicit terms of the contract.
The plaintiff defends that retroactive modification is not warranted in this case. The plaintiff argues that when there is an order for unallocated alimony and support, there is no numerical value that can be deducted from the order when a child reaches the age where support is no longer necessary. This is so, the plaintiff argues, because an unallocated order contemplates that a certain amount is applied towards child support and for alimony without the assignment of a numerical value to each. Thus, the plaintiff argues that retroactive modification is inappropriate when there is no exact amount that the order can be automatically reduced by when support is no longer due.
In Stein v. Stein, 49 Conn.App. 536, 714 A.2d 1272 (1998), the court interpreted a separation agreement that was incorporated into the dissolution judgment. The judgment provided that alimony would be modifiable as to amount in the event the plaintiff or defendant died, the plaintiff remarried or the plaintiff was employed full-time. Id., 538. The court noted that "[t]he alimony termination provision is automatic and self-executing, just as it would be upon the plaintiff's marriage or the death of either party." Id., 540. The court also held that the defendant was entitled to a reimbursement for any alimony amount paid to the plaintiff as of the date that she obtained full-time employment, rather than the date the plaintiff was served with the complaint. Id.
The defendant relies heavily on Stein v. Stein, supra, for the proposition that retroactive modification is also warranted in the present case. In his motion for modification, the defendant argues that once the circumstances for termination occur, modification is automatic and applies retroactively to the date of the occurrence. The plaintiff, on the other hand, argues that Stein is distinguished because the order at issue was for alimony only, unlike the present case, where there is an unallocated order for alimony and child support. The court concludes that retroactive modification applies with respect to the defendant's obligation to support Caitlyn.
In Kolkmeyer v. Kolkmeyer, supra, 18 Conn.App. 336, the Supreme Court decided the issue of retroactive modification for an unallocated order of alimony and child support. In Kolkmeyer, the terms of the dissolution judgment required that the defendant pay unallocated alimony and child support to the plaintiff. Id., 337-38. The parties orally stipulated to several definite events that would terminate either alimony or child support. Id., 339. The defendant, upon learning that the plaintiff remarried, noticed the court and unilaterally reduced his obligation to pay alimony by $100 because one of the specified events for termination occurred. Id. The court noted that "[o]rders for unallocated alimony and child support arc severable, and adjustments may be made when circumstances require . . . Inherent in an order of unallocated alimony and support [however] is that some portion of the order is attributable to the payor's obligation to support the child." (Internal quotation marks omitted.) Id., 341. As such, when an event that supports termination occurs, a party may not unilaterally terminate his support obligation. Id. Rather, the court held that it is incumbent upon the court, upon a motion for modification, to determine the appropriate amount of support and enter a new order, even though part of the obligation in the unallocated is extinguished. Id., 342.
Although in the present case, the defendant petitioned the court for modification, rather than resorting to self-help, Kolkmeyer is instructive to the issue of whether retroactive modification of child support applies. The Supreme Court in Kolkmeyer found error in the trial court's determination that the order setting child support took effect on the day the court decided the motion. Id. The court held that "the original payment remained in effect until the court determined the new amount. Once that new amount was determined, however, the proper resolution of the issue of arrearage was to apply an amount of child support retroactively to the date of the plaintiff's remarriage, giving the defendant credit for [the amount] paid during that time. This would accomplish the desired end of having the defendant pay the proper amount of child support without having to pay alimony, to a remarried spouse, in contravention of the agreement of the parties as set out in the judgment." Id.
As applied to this case, the defendant's obligation to support Caitlyn terminated on May 2, 2003. Nonetheless, the defendant was still required to pay the original amount in the unallocated order, i.e., $175 per week, until the new amount was determined by the court. The court reiterates, however, that the defendant's obligation to support Joseph has not yet terminated. Unlike in Kolkmeyer, where the defendant's support obligation to the plaintiff was completely extinguished because of her remarriage, in the present case, the termination of the defendant's obligation to support Caitlyn does not extend to Joseph. Thus, the defendant's motion for modification, with respect to his child support obligation, is granted as to Caitlyn but denied as to Joseph. Moreover, as previously discussed, alimony terminated by the agreement of the parties effective January 1, 2004, leaving to the defendant the sole obligation of paying child support for the benefit of Joseph. With regard to the amount of the unallocated order, there is simply no way this court can look back at this time and determine what an appropriate alimony and child support order for Joseph should have been, especially since the defendant did not file any financial affidavit and/or motion to modify the order at the time Caitlin turned 21 years of age, a date he clearly knew. In this regard it is important to remember that the 1998 reduction in financial orders, as a result of the defendant's motion, were as a result of the defendant's unemployment and Christopher reaching the age of 21 years. Since that time, the defendant became reemployed. Had the defendant filed a motion to modify support with a supporting financial affidavit when Caitlin turned 21, the court could have considered all required and appropriate factors in setting an appropriate order. The defendant cannot take advantage of his failure to do so at this time.
Based on the foregoing, the defendant's motion for modification of child support post-judgment is granted in part, and denied in part. The defendant's obligation to support Caitlyn terminated because she obtained the age of twenty-one years. The modification is applied retroactively to May 2, 2003. Furthermore, the defendant's obligation to support Joseph has not yet terminated because he is currently enrolled as a full-time student.
After reviewing the statutory and case law, as well as the testimony and evidence presented by the parties, including the financial affidavits and the child support guidelines, the court issues the following findings and orders:
1. The existing order of unallocated alimony and child support in the amount of $175 per week remained in effect until January 1, 2004;
2. Alimony terminated on January 1, 2004, pursuant to the agreement of the parties;
3. The order of support became only an order of child support for Joseph from January 1, 2004 to the present time;
4. The defendant's motion for the termination of child support for Joseph is denied;
5. The defendant shall pay child support to the plaintiff for Joseph in the amount of $163 per week, retroactive to January 1, 2004;
6. The arrearage order of $50 per week shall remain in full force and effect until such time as Support Enforcement determines that all arrearages attributable to the defendant, if any, are paid in full;
7. If the above orders result in an overpayment of support by the defendant, the defendant shall receive a credit for any such overpayments from January 1, 2004 to the present time;
8. No attorneys fees are awarded to either party.
Resha, J.