Opinion
TTDFA144021658S
08-16-2018
Catherine SUTCH v. Brian P. SUTCH
UNPUBLISHED OPINION
Armata, J.
I
BACKGROUND OF CASE AND ISSUE TO DECIDE
On August 20, 2015, a judgment of dissolution was entered in the aforementioned matter. Pursuant to the terms of the judgment, which incorporates by reference the parties’ Settlement and Property Distribution Agreement (Separation Agreement), this court, pursuant to General Statutes § 46b-56c, was to retain jurisdiction over the cost of the educational support of the parties’ children. The parties agreed that had they remained an intact family, they each would have contributed to the educational support of the children. The parties also agreed that they shall each pay their share directly to the school or other service provider, landlord or provider of goods. See Separation Agreement, Entry No. 113, Article IV, para. 4.1. Further, the Separation Agreement provides, in pertinent part, that "[t]he father shall continue to cover the minor children on his health insurance as available through his employer at a reasonable cost until the children attain the age of 26 ... [T]his obligation will only continue for so long as the child is a full-time student. Said cost shall be considered part of the obligation for the educational support order of the children pursuant to § 46b-56c." See Separation Agreement, Article IX, para. 9.1.
On May 31, 2018, the plaintiff filed this postjudgment motion for order seeking contribution to the educational expense for their eldest daughter, Kiera. Additionally, on July 11, 2018, the plaintiff filed a postjudgment motion to modify seeking a child support order that is consistent with the child support guidelines (Entry No. 305). The motions were set for an evidentiary hearing on July 27, 2018. After meeting with family services on the day of the hearing, the parties reached an agreement with respect to the motion to modify child support.
On July 27, 2018, the parties, by agreement (Entry No. 306), increased the defendant’s child support obligation from the $227 per week contemplated in the Judgment to $323 per week. The agreement also obligated the defendant to be responsible for 65 percent of the unreimbursed medical, dental, or vision expenses for the children after applicable HSAs or other employer contribution, an amount consistent with the Child Support Guidelines.
A
Parties’ Proposed Orders
The parties submitted proposed orders relative to the present motion prior to the hearing. The plaintiff proposed that the defendant shall contribute to Kiera’s college education as follows: "The [defendant] shall pay 68 percent of the costs of [Kiera’s] car insurance. [The defendant] shall pay the tuition, the university expenses and fees for Kiera at the beginning of each semester, according to the school policy for payment. His obligation will be limited to the tuition alone and not room and board or other fees. Kiera will not be obligated to take a loan to off-set the tuition payment; however, she shall continue to apply for institutional grants, institutional financial aid and scholarships which shall offset his tuition obligation. The plaintiff shall continue to provide the defendant with payment information from the University of Connecticut [UCONN] with regards to school fees and expenses. The defendant shall pay in full the loan in the amount of $5000 for the 2018-2019 school year that Kiera was forced to take out due to the college payment issue being unresolved in a timely fashion. The plaintiff and Kiera shall be responsible for the remaining expenses." See Plaintiff’s Proposed Orders.
Alternatively, the plaintiff proposes that if the court determines that Kiera should take out a loan for her tuition, that the defendant should be ordered to pay the plaintiff the sum of $160 per week for her living expenses as a commuter student. See Plaintiff’s Proposed Orders, para. 2.
The defendant proposed that "the plaintiff shall be responsible for 45 percent of the cost of tuition after all available student aid is used towards the tuition which includes all grants, the maximum available student loans available to Kiera and accounting for the health insurance credit for the defendant paying the plaintiff’s share of health insurance at the defined ratio of 45/55 percent. The plaintiff shall pay the tuition for Kiera at the beginning of each semester, according to the school policy for payment. The plaintiff shall supply room and board to Kiera for the duration of her college. If Kiera chooses to live elsewhere, she shall be responsible for the total costs of room and board. The defendant shall be responsible for 55 percent of the cost of tuition after all available student aid is used towards the tuition which includes all grant, the maximum available student loans available to Kiera and accounting for the health insurance credit for the defendant paying the plaintiff’s share of health insurance at the defined ratio of 45/55 percent. The defendant shall pay the tuition for Kiera at the beginning of each semester, according to the school policy for payment. Kiera shall reach out to the defendant’s mother to ask for financial help with her education expenses. Kiera shall work and earn a minimum of $10,100 per year to pay for transportation, costs, dues, fees, and books. All future educational support information and requests for financial assistance must come directly from Kiera to both parents. Kiera shall remain in good standing to continue to receiving the UCONN grant. If she fails to do so, she will be given one semester to bring her grades back up to receive the grant. If she fails to do so, she will then be responsible for 1/3 of the tuition after all available student aid is used towards the tuition which includes all grants, the maximum available student loans available to Kiera and accounting to the health insurance credit for the defendant paying the plaintiff’s share of health insurance at the defined ratio of 45/55 percent. Finally, the defendant proposes that the orders be modifiable upon a substantial change in circumstances, subject to the following limitation: "[t]he Order may not be modified for gross income unless the income has changed more than 20 percent from the amounts shown on the current financial affidavits ..." See Defendant’s Proposed Orders.
B
Evidence Presented at the Hearing
At the hearing, the plaintiff, who the court found credible, testified that Kiera is an accomplished young woman who was admitted to five of the six colleges she applied to, the exception being Columbia University. Of the five schools to which Kiera was accepted, she chose UCONN, the least expensive college, and additionally agreed to live at home, thus finding additional ways to save money.
Plaintiff testified and the court finds that Kiera took advanced placement classes in high school so as to shorten her time in college, and was admitted to UCONN as a full-time student. She further testified that Kiera received a $20,000 grant to attend UCONN ($5,000 a year for four years, provided she maintains a minimum 3.0 grade point average); obtained a $750 scholarship from E.O. Smith High School; worked as a waitress during the summer to save money for college expenses such as books etc., and plans to continue working two shifts per week while in school; is planning on studying business at UCONN, and will seek additional financial assistance while in that program. Kiera also plans on participating in the UCONN marching band, and will reside at home, commuting to school to save the family money. The plaintiff further testified that Kiera tried to involve her father in the discussions relative to college, although their relationship is strained. Unfortunately, Kiera sent information intended for the defendant to an incorrect email address. Nevertheless, the plaintiff testified that she kept the defendant informed as to Kiera’s college options and costs by sending him a detailed spreadsheet.
The plaintiff further testified that the cost of tuition, including fees, at UCONN is $15,730 ($12,848 for tuition and $2,882 for university and student’s fees). See Plaintiff’s Exhibit 1. The plaintiff also estimates that she will incur expenses of $120 to $150 per week while Kiera resides at home.
Because of difficulty in the parent’s relationship, and their inability to come to resolution in a timely manner regarding the payment for college, Kiera had to take out a student loan in the amount of $5,500. The plaintiff further testified that she, personally, contributed $1,594 from a 529 savings plan which she had created for Kiera’s benefit. She further testified that Kiera will be responsible for her books and other expenses while at school. Accordingly, the court finds that the amount necessary for Kiera to attend UCONN, without offsetting the loan taken out by Kiera, is $8,386 ($15,730, less $5000 grant, less $750 E.O. Smith scholarship, less $1,594 contribution from 529 plan), which is the total amount of the dispute. The plaintiff is seeking that the defendant pay the entire disputed amount, including being financially responsible for the student loan that Kiera was forced to take out. If that amount is paid by the defendant, the plaintiff will not seek the defendant’s contribution towards the additional costs she will bear relative to Kiera residing with her.
The defendant acknowledged that he received the communication from the plaintiff relative to the college search, and replied that he had "no opinion" on school. The defendant confirmed that he communicated to the plaintiff relative to college expenses that he "was not going into debt for his children." He further testified that he was not offered choices relative to the college selection process. He also testified that he would "look to help his children anyway he can," and that he wants his daughter to take out a loan so as to be "more driven."
The defendant focused the court’s attention on the Separation Agreement, Article IX, para. 9.2, which requires the court to consider health insurance costs as part of the obligation for the education support order of the children pursuant to § 46b-56c. He claims that since he is providing health insurance for Kiera, as well as the other daughter, the cost of that should be deducted from his post-secondary education obligation, which would be comparable to the amount being sought by the plaintiff. There was testimony about the costs of health insurance, and the defendant conceded that he currently has no financial obligation to pay for health insurance as it is paid for by his employer. On cross examination, the defendant admits that if he did have to pay for it, his salary would be increased to offset those costs.
The plaintiff’s counsel asserts that by having the employer directly pay the costs of the insurance, rather than being a part of defendant’s compensation, he is effectively blocking any potential modification of alimony by keeping his income within the safe harbor as provided for in the judgment. See Separation Agreement, Entry No. 113, Article VI, para. 11.
The defendant further testified that the alimony and child support he pays to the plaintiff should be a factor in determining the parties’ respective incomes, and, if considered, there is little difference between his income and the plaintiff’s. The defendant argued that all financial resources should be considered, including Kiera’s student loan, for which she should remain responsible, and Kiera should remain obligated to seek out student financing options in the future. As the defendant put it, he wants his "daughter to learn life lessons and incur debt so as to be an adult, just like he did."
On cross examination, the defendant acknowledged that he agreed with Kiera’s choice of UCONN, because it was the least expensive of the five schools, and that he does want his daughter to have a college education. The defendant also testified that he is making charitable contributions, as well as providing other items to the children. The defendant further testified that he pays his mortgage to an LLC, of which he is the sole member. Additionally, the defendant has recently paid for renovations to his home, making his current living conditions "barely livable." The defendant is also able to contribute $471 per week to his 401(k) retirement plan.
This court notes that although the defendant lists "Joseph, LLC" on his financial affidavit, he testified that there is approximately $20,000 worth of equity in the home he resides in, which is not shown. Instead, he combined that amount with a claim of $400,000 worth of debt, much of which appears to be charged off.
II
DISCUSSION
Pursuant to General Statutes § 46b-56c(4)(c), "[t]he court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is 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." The record demonstrates the parties’ agreement that if the family had remained intact, they would have jointly provided for Kiera’s education. See Separation Agreement, Article IV, para. 4.1, Entry No. 113.
Section 46b-56c(4)(c) further states that "[a]fter making such finding, the court, in determining an educational support order, the court shall consider all relevant circumstances, including: (1) The parents’ income, assets and other obligations; (2) the child’s need for support to attend an institution of higher education considering the child’s assets and the child’s ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available; (5) the child’s preparation for, aptitude for and commitment to higher education."
In addition to the aforementioned considerations, this court will take into account the actual cost of Kiera’s educational expenses. "The common, natural and ordinary meaning of cost is "the price paid to acquire, produce, accomplish or maintain anything. Whether the funds an individual remits to an institution to acquire an education come from that individual’s own assets or first are obtained from a third-party lender, they most assuredly are ‘paid’ by the individual to the institution in satisfaction of a bill. More importantly, at some future point, the lender will demand that the individual repay the amounts loaned, along with additional interest. In contrast, scholarships and grants apply to reduce the amount charged by the institution at the outset and reimbursement is never required. Thus, they are not part of the ‘price paid’ to the institution by the individual acquiring an education." Histen v. Histen, 98 Conn.App. 729, 734-35, 911 A.2d 348 (2006).
In the present case, the court finds that it is clear that Kiera needs financial support so she can attend UCONN. The court has considered her income and contributions, including: her excellent high school performance resulting in a $20,000 grant from the institution requiring Kiera to maintain a 3.0 grade point average; advance placement classes to shorten her time in college; choosing to live at home to save her family money; and, committing to the costs of her books, as well as additional fees. Clearly, Kiera has prepared for, and is committed to, her higher education.
Further, the parties’ dissolution judgment clearly and unambiguously demonstrates that the parties contemplated providing for their children’s future college education expenses. See Loso v. Loso, 132 Conn.App. 257, 260, 31 A.3d 830 (2011). (holding that separation agreement to be construed as contract unambiguously effectuating intent of parties).
In adjudicating this motion, this court must consider the parents’ income, assets and other obligations. The court has compared the financial affidavits submitted by the parties at the time of the hearing finds that the defendant is in a better financial position to assist with post-majority support than the plaintiff. Per the financial affidavits submitted by the parties at the time of the hearing, the plaintiff has a gross income of $1,528 ($1,068 income plus $460 in alimony from the defendant), while the defendant has a gross income of $2,754 ($3,214 less alimony of $460), making for a difference of $1,226 per week in the defendant’s favor. This court also finds that the defendant has significantly higher weekly net income than the plaintiff, with the plaintiff showing a net income of $1,462, whereas the defendant is showing a net income of $2,506. This leaves the defendant an additional $1,044 available to him per week. The court also finds that parties’ expenses are relatively equal with the defendant demonstrating weekly expenses of $1,774 for himself, while the plaintiff spends $1,525 per week for herself and the couple’s two children. "[A] trial court must base ... support orders on the available net income of the parties." Evans v. Taylor, 67 Conn.App. 108, 111, 786 A.2d 525 (2001).
The defendant argues that his child support obligation should also be deducted from his income and included in the plaintiff’s. However, the plaintiff’s counsel correctly points out that the plaintiff also has an obligation to support the children that she is bearing.
Additionally, the court finds that the plaintiff is contributing to her retirement at the rate of $22 per week, while the defendant is contributing to his retirement at the rate of $471 per week. The court also finds that the defendant that the home he is living in is held by a LLC, of which he is the sole member, has home equity of approximately $20,000, whereas the plaintiff has home equity of $11,000.
This court also notes that the Separation Agreement contemplates the possibility that Kiera could live off campus, and that the parties might be making payments to a landlord. The court finds however, that the plaintiff is providing additional contribution towards Kiera’s post-secondary education by having the child reside at home, and not seeking contribution from either the defendant or Kiera towards the cost of boarding.
While the defendant makes the argument that Kiera should be contributing to her postsecondary education, the court finds that she already making significant contributions to her college education goals. Finally, while the defendant argues that this court should give him credit for the health insurance he provides for the minor children (a monetary value of over $8,000 per year), the court is not persuaded since the defendant has little additional financial obligation associated with this coverage.
According to the defendant’s Exhibit B, a letter from the Whitewind Company, the defendant’s employer, Whitewind pays for the majority of the children’s medical and dental insurance costs, while the defendant contributes $712.68 per year towards health insurance costs.
The defendant further argued that several cases should be considered by the court in arriving at a decision with regard to Kiera’s educational room and board expenses including: Alvarado v. Black, 248 Conn. 409, 728 A.2d 500 (1999) (holding that payments made by employer for health insurance premiums not gratuitous but form of employee’s compensation plan); Barbour v. Barbour, 156 Conn.App. 383, 113 A.3d 77 (2015) (holding that educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs not to exceed amount charged by UCONN for full-time in-state student); Kelman v. Kelman, 86 Conn.App. 120, 860 A.2d 292 (2004), cert. denied, 273 Conn. 911 (2005) (holding that court must base child support and alimony on available net income of the parties, not gross income); Leopard v. Leopard, Superior Court of Connecticut, judicial district of Hartford (November 16, 2010, J. Taylor) (noting court’s jurisdiction over educational support orders is permissive not mandatory). The court does not find these decisions applicable to the particular facts and circumstances of this case.
In response, the plaintiff cited to Legg v. Legg, 44 Conn.App. 303, 688 A.2d 1354, 1356 (1997), holding that the "stipulation of the parties made clear their intention to pay for the room and board of their children when they attended college. These items have a dollar value, whether incurred on or off campus ... [n]owhere in the agreement is there a specification that requires the child to live on campus for the parents to be responsible for room and board expenses. The defendant could have incorporated such a specification into the stipulation had he wanted, but he did not." Id., 307. In the present case, the parties’ Separation Agreement provides that they would also be responsible for Kiera’s room and board regardless of whether if she chose to live on campus or reside at home. The plaintiff, however, is not seeking contribution towards educational room and board at this time.
III
FINDINGS AND ORDERS
After consideration of all the evidence presented, including the testimony of the parties, review of the court file, exhibits offered, as well as all applicable common and statutory law, including without limitation, General Statutes § 46b-56c, the court concludes that the plaintiff has met her burden of proof by a preponderance of the evidence and makes the following orders, which the court find to be in the best interest of the minor children:
1. The defendant shall be solely responsible for the $5500 student loan taken out by Kiera so she a can attend UCONN full-time. This court finds that the defendant has the financial ability and means to be responsible for the loan by either reducing the amount he is contributing to his retirement or liquidating assets, such as his retirement accounts, to pay off the loan. Either option will not put the defendant in debt. The defendant shall make payments directly to the lender and shall hold Kiera harmless on the loan. This obligation is in the nature of support and shall not be dischargeable on any bankruptcy proceeding.
2. The defendant shall pay $1,886 towards any remaining balance, which shall be paid directly to UCONN.
3. The plaintiff shall pay $1,000 towards any remaining balance, and the balance, which shall be paid directly to UCONN.
4. If Kiera continues to reside in the plaintiff’s home, and there is no contribution towards her boarding from any source, then future post-secondary education shall be apportioned as follows: 20 percent by the plaintiff and 80 percent by the defendant. If Kiera resides outside of the home, however, the parties shall divide her post-secondary education, including reasonable, applicable housing expenses as follows: 35 percent by the plaintiff and 65 percent by the defendant. This is based on their respective net incomes, including the payment of alimony.
5. Kiera will not be obligated to take out a loan to off-set the tuition payment; however, she shall continue to reasonably apply for institutional grants, institutional financial aid and scholarships which shall offset the parent’s tuition obligation. The parties shall cooperate in furnishing any financial information required such as tax returns, etc. so that Kiera may complete the applications for financial aid.
6. The plaintiff shall continue to provide the defendant with payment information from UCONN with regards to school fees and expenses, as well as documentation of Kiera’s academic performance.
7. Kiera shall be responsible for her books and other expenses.
8. These orders may be modifiable upon a substantial change in circumstances.
9. All other orders not affected by this decision shall remain in full force and effect, specifically the requirement that "[t]he father shall continue to cover the minor children his health insurance as available through his employer at a reasonable costs until the children attain the age of 26. However, this obligation will only continue if for so long as the child is a full-time student. Said cost shall be considered part of the obligation for the education support order of the children pursuant to 46b-56c." See Separation Agreement, Entry No. 113, Article IX, para. 9.1.
ORDER
SO ORDERED