Opinion
(8927)
The plaintiff, whose marriage to the defendant had been dissolved, appealed from the order of the trial court modifying his obligation to provide postmajority education for the parties' two children. Held: 1. There being no written agreement for the modification here, the trial court lacked subject matter jurisdiction to grant the defendant's motion to modify the provisions of the parties' dissolution agreement relating to the postmajority children's college tuition. 2. There was no merit to the defendant's claim that the trial Court lacked subject matter jurisdiction to award attorney's fees to the defendant to defend the appeal; the record did not, however, reflect that the applicable statutory ( 46b-62 and 46b-82) criteria were considered and weighed by that court in making its award.
Argued February 14, 1991
Decision released April 2, 1991
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Litchfield and tried to the court, Allen, J.;judgment dissolving the marriage, and granting certain other relief; thereafter, the court, Pickett, J., granted, in part, the defendant's motion to modify the judgment as to the award of postmajority support, and the defendant appealed to this court; subsequently, the court granted the defendant's motion for attorney's fees to defend the appeal, and the plaintiff filed an amended appeal to this court. Reversed in part; judgment directed in part; further proceedings.
Donald A. Mitchell, pro se, the appellant (plaintiff).
Charles F. Brower, for the appellee (defendant).
The plaintiff appeals from the trial court's granting of the defendant's motion for modification of a postmajority support order and the allowance of counsel fees to defend the appeal. The following facts are necessary for the consideration of this claim.
On May 27, 1986, a judgment of dissolution was rendered incorporating the parties' executed settlement agreement. Among the provisions of the agreement were the following: The plaintiff was to contribute two thirds and the defendant one third of the actual costs for the college education of each child, not to exceed the amount then charged by the University of Connecticut; a modification and waiver of any of the provisions of the agreement would be effective only if made in writing and executed with the same formality as the original agreement; the plaintiff was to pay $150 per week in alimony and $75 per week in support of each of the two minor children; the plaintiff and the defendant each were to have the right to claim one child as a federal tax exemption on their returns each year, alternating the child claimed each year. The defendant moved to modify the judgment by a motion dated January 18, 1990, requesting relief from the postmajority tuition obligation, an increase in alimony and in support payments for the remaining minor child, and the right to claim both children as exemptions on her tax return. On February 5, 1990, the trial court granted the defendant relief from her obligation to pay tuition and denied her other requests. The plaintiff appealed. In March, 1990, the defendant requested and was granted an allowance of $3500 for counsel fees to defend the appeal. The plaintiff has also appealed from the decision granting this award.
The record apparently dated the order incorrectly as February 5, 1989.
The plaintiff claims that the trial court lacked subject matter jurisdiction to modify the postmajority education order, improperly relied on outdated financial affidavits in awarding counsel fees, should have deferred making the award of counsel fees and lacked sufficient evidence concerning the reasonableness of those fees. We reverse the judgment of the trial court.
General Statutes 46b-66 requires agreements for the postmajority support of a child to be written. This requirement also applies to modifications of postmajority support. Hirtle v. Hirtle, 217 Conn. 394, 399-400, 586 A.2d 578 (1991). A written agreement is a jurisdictional prerequisite for a valid modification of a postmajority support agreement. Id., 400-401; Cattaneo v. Cattaneo, 19 Conn. App. 161, 164, 561 A.2d 967 (1989). Because there was no written agreement for the modification here, we conclude that the trial court lacked subject matter jurisdiction over the defendant's motion, and therefore could not modify the provisions of the parties' dissolution agreement relating to the postmajority college tuition. Hirtle v. Hirtle, supra, 399-401; Albrecht v. Albrecht, 19 Conn. App. 146, 157, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).
General Statutes 46b-66 provides in relevant part: "REVIEW OF AGREEMENTS; INCORPORATION INTO DECREE. In any case under this chapter where the parties have submitted to the court an agreement concerning the . . . support of any of their children . . . the court shall . . . determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing. It shall be incorporated by reference into the order or decree of the court. . . . If the agreement is in writing and provides for the . . . 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."
The plaintiff also claims that the trial court lacked subject matter jurisdiction to award counsel fees to the defendant. This claim is without merit because General Statutes 46b-62 grants the courts this power. Bucy v. Bucy, 23 Conn. App. 98, 106, 579 A.2d 117 (1990). The inherent power of the court to award such an allowance to defend an appeal is well settled. Whether to grant such an allowance, or what amounts to award are entrusted to the court's sound discretion. Benson v. Benson, 5 Conn. App. 95, 100, 497 A.2d 64 (1985), and cases cited therein. In exercising its broad discretion, however, the court must consider the parties' respective financial abilities and the criteria set forth General Statutes 46b-62 and 46b-82. Id. The policy underlying this allowance is that a spouse should not be deprived of his or her rights owing to lack of funds. Id.
General Statutes 46b-62 provides in relevant part: "In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse . . . to pay the reasonable attorney's fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82."
General Statutes 46b-82 provides in part: "In determining whether alimony should be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . ."
The plaintiff argues that the trial court did not consider the criteria contained in General Statutes 46b-82 but relied solely on the parties' financial affidavits. Although the trial court is not obligated to make express findings on each of the enumerated criteria in General Statutes 46b-82, the court's memorandum of decision must at least reflect that those criteria were considered and weighed in view of the particular parties' circumstances. Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983); Messina v. Messina, 22 Conn. App. 136, 140-42, 576 A.2d 579 (1990). Neither the record nor the order awarding counsel fees reflects that the trial court considered the statutory criteria of General Statutes 46b-62 and 46b-82.