Opinion
FSTFA114021238S
03-21-2017
Karen H. Williams v. Willis W. Williams, III
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON AMENDED MOTION TO COMPEL, POSTJUDGMENT
Donna Nelson Heller, J.
The plaintiff Karen H. Williams and the defendant Willis W. Williams, III were divorced on February 27, 2013. The judgment of dissolution (Novack, J.T.R.) incorporated by reference a separation agreement entered into that day between the plaintiff and the defendant (the February 2013 separation agreement) (#145.00). Article IV of the February 2013 separation agreement included provisions relating to payment of the costs of college education for the parties' three children--Emily Marie, born on December 18, 1996, and twins Katherine and Willis, born on June 9, 2001--discussed more fully below.
The plaintiff died on April 8, 2016 following a nine-year battle with cancer. Her brother Steven E. Harris (the executor) was appointed the executor of the plaintiff's estate pursuant to the terms of her last will and testament and named the guardian of the minor children. The executor was substituted as the plaintiff in this action on October 11, 2016 (Tindill, J.). (#149.02).
For purposes of this memorandum of decision, " the plaintiff" shall mean the original plaintiff Ms. Williams, " the executor" shall mean Mr. Harris, the executor of Ms. Williams's estate and the substituted plaintiff, and " the parties" shall mean the plaintiff and the defendant.
On August 2, 2016, the executor moved by order to show cause for an order to compel the defendant to comply with the provisions of Article IV of the February 2013 separation agreement and apply funds from a 529 account established for Emily's benefit toward her educational expenses at Boston University, where she is currently in her junior year (#149.00; #149.01). On August 16, 2016, the executor filed an amended motion to compel, postjudgment (#151.00). The defendant filed an objection to the motion to compel on November 16, 2016 (#152.00).
The executor and the defendant were before the court on December 5, 2016 for an evidentiary hearing on the executor's amended motion to compel, postjudgment, and the defendant's objection thereto. The court heard testimony from the executor and Emily, reviewed the exhibits admitted into evidence, and considered the closing arguments of counsel. The defendant also made an oral motion to dismiss during the hearing. The court reserved decision at that time. On December 29, 2016, the defendant submitted a post-hearing memorandum (#155.00). The executor filed a post-hearing memorandum on January 18, 2017 (#156.00).
I
At some point prior to the dissolution of the parties' marriage, the defendant established three accounts for the benefit of Emily, Katherine, and Willis pursuant to § 529 of the Internal Revenue Code, 26 U.S.C. § 529 (the 529 accounts). They defendant remained the custodian of the 529 accounts following the entry of the dissolution judgment.
Funds in a 529 account are entitled to favorable tax treatment and are applied to qualified educational expenses in accordance with federal law.
Pursuant to Article IV of the February 2013 separation agreement, the parties agreed in paragraph 4.1 to share responsibility for the cost of their children's college education, consistent with the provisions of General Statutes § 46b-56c, governing educational support orders. Paragraph 4.1 also provided that the court would have continuing jurisdiction to enter educational support orders pursuant to the statute. Paragraph 4.4 provided that " the term 'educational expenses' as used herein shall be limited to the cost of the University of Connecticut at Storrs for a full-time in-state student and shall include the cost of tuition, books, room and board, dues, registration and application costs, medical insurance and fees charged by the institution, reasonable, usually necessary living [expenses], except this limit may be exceeded by agreement of the parties." Under paragraph 4.5, the parties agreed " to share in the reasonable expenses for a four-year college education for the minor children, as defined above. However payment shall be made by the parents only after all available financial aid, scholarships, student loans, use of their 529 plans and earnings of the child are utilized. The child shall first apply any of his/her own funds toward his/her education expenses as defined above. Nothing herein shall be construed to relieve the child of his/her obligation to seek or obtain loans, scholarships, work study, grants, grants-in-aid or other financial assistance toward the cost of his college education." Paragraph 4.8 provided that " [t]he parties agree that the funds contained in the 529 plans are for the children's educational expenses as defined above paragraph 4.4, only, and may not be used for any other purpose."
General Statutes § 46b-56c provides in pertinent part as follows:
(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age. (b)(1) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree of dissolution, legal separation or annulment, and no educational support order may be entered thereafter unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date . . . (c) The 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. After making such finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including: (1) The parents' income, assets and other obligations, including obligations to other dependents; (2) the child's need for support to attend an institution of higher education or private occupational school 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; and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend. (d) At the appropriate time, both parents shall participate in, and agree upon, the decision as to which institution of higher education or private occupational school the child will attend. The court may make an order resolving the matter if the parents fail to reach an agreement. (e) 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. (f) The educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, registration and application costs, but such expenses shall not be more than the amount charged by The University of Connecticut for a full-time in-state student at the time the child for whom educational support is being ordered matriculates, except this limit may be exceeded by agreement of the parents. An educational support order may also include the cost of books and medical insurance for such child.
Emily anticipates graduating in three and a half years because she matriculated with college credits from the Advanced Placement classes that she took at Westhill High School. She also took classes in the summer of 2016. After the defendant refused to pay Emily's tuition for the second summer session, she borrowed approximately $3,000 from Linda Yuen, a family friend, so that she could attend classes.
Emily's tuition, room and board, and related expenses for the second semester of her junior year at Boston University appear to be covered by her financial aid package. There is no assurance or guarantee that her financial aid package will continue for the 2017-2018 academic year.
Emily was granted a leave of absence for the fall semester because she was hired by the Hillary Clinton Presidential campaign in August 2016.
There was some question at the hearing regarding whether Emily had a $1,489 credit on her account or owed $1,489 for the second semester of the 2016-2017 academic year.
Emily testified that her last communication with the defendant was by text message on July 17, 2016. She said that the defendant attempted to have her choose between the defendant and her siblings after the defendant was arrested and charged with sexual assault. She chose to believe Katherine and Willis. She has not permitted the defendant to have access to her Boston University records through the ShareLink portal since on or about July 21, 2016, when he told her that he would not pay her tuition unless she met with him in person, which she has declined to do.
The court has taken judicial notice of the information available on the Judicial Branch website concerning the defendant's pending felony charges. He was arrested on July 18, 2016 and charged with sexual assault in the first degree where the victim is under thirteen years of age and the actor is more than two years older than such person, General Statutes 53a-70(a)(2); illegal sexual contact where the victim is under sixteen years of age, General Statutes 53-21(a)(2), and risk of injury to a child, General Statutes 53-21(a)(1). The defendant has entered a plea of not guilty.
II
The executor seeks an order appointing him as the custodian of the 529 accounts in lieu of the defendant. In the alternative, the executor asks that the defendant be ordered to pay the children's college expenses out of the 529 accounts; that the defendant be enjoined from using the funds in the 529 accounts for any purpose other than the children's education, and that the defendant reimburse the family friend who paid Emily's summer 2016 tuition. The executor also seeks to recover his attorneys fees in this proceeding.
The executor is concerned that the defendant will use the funds in the 529 accounts to pay his legal fees in the criminal action rather than for the children's college education.
In response, the defendant contends that the court lacks subject matter jurisdiction because there is no case or controversy ripe for decision by the court. The defendant points out that Emily's educational expenses have been paid in full to date, and she is likely to continue to receive a generous financial aid package from Boston University. The defendant also argues that the executor is seeking an educational support order without complying with General Statutes § 46b-56c(e)(4). In addition, the defendant claims that there is no basis for changing the custodian of the 529 accounts or for awarding attorneys fees to the executor.
A
The court will begin with the defendant's first argument and the substance of his oral motion to dismiss--that there is no case or controversy ripe for decision by the court, and, therefore, the court lacks subject matter jurisdiction. " Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727, 724 A.2d 1084 (1999). According to the defendant, the court lacks subject matter jurisdiction because the plaintiff's claims are not ripe for adjudication. " [R]ipeness is a sine qua non of justiciability . . ." American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn.App. 384, 390 n.12, 704 A.2d 243 (1997), cert. denied, 244 Conn. 901, 710 A.2d 174 (1998). " [J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter . . . A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Emphasis in original; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). " Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Weiner v. Clinton, 100 Conn.App. 753, 757, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007). " An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates [the] court's subject matter jurisdiction." (Citation omitted.) Milford Power Co. v. Alstom Power, Inc., 263 Conn. 616, 624, 822 A.2d 196 (2003).
" [T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. at 86-87. The court lacks subject matter jurisdiction over a premature claim because it is not ripe, and, therefore, not justiciable. American Premier Underwriters, Inc. v. National Railroad Passenger Corp., supra, 47 Conn.App. at 390.
The defendant contends that this action is premature, and thus not ripe, because Emily does not need the funds in her 529 account to pay her current educational expenses. While this may be true at the present time, the fact is that Emily has not completed her undergraduate education at Boston University. She may have expenses in the coming months that are not covered by her financial aid package. In addition, Emily owes money to Mrs. Yuen for the second session of her summer courses. The executor seeks to enforce the terms of the February 2013 separation agreement so that the funds in Emily's 529 account are applied for her benefit. These issues are properly before the court.
" Pursuant to Connecticut's ripeness jurisprudence, as long as it is clear that a plaintiff has suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable." (Citations omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. at 87-88. The court finds that the executor's claims are ripe for adjudication, and, therefore, they are justiciable. Accordingly, the court has subject matter jurisdiction. The defendant's oral motion to dismiss is denied.
B
The executor asks to be appointed the custodian of the 529 accounts in lieu of the defendant. Although the 529 accounts were not expressly awarded to the defendant in the dissolution judgment, the defendant established the accounts prior to the parties' divorce and remained the custodian of the accounts after the dissolution judgment was entered. It is clear that " 529 accounts [are] marital property pursuant to General Statutes § 46b-81, under the broad definition given to that term by our legislature." Greenan v. Greenan, 150 Conn.App. 289, 311, 91 A.3d 909 (2014). As the defendant properly points out, a 529 account is owned by the custodian, in contrast to an account created under the Connecticut Uniform Transfers to Minors Act (UTMA), General Statutes § 45a-557 et seq., where " the custodian is a fiduciary and owes a fiduciary duty to the children. The funds are the property of the children . . ." Turner v. Turner, Superior Court, judicial district of New London, Docket No. FA-02-0124417-S, (May 4, 2009, Schluger, J.).
The executor contends that the court has authority under Greenan to name the executor as custodian of the 529 accounts. The court does not agree. Greenan is distinguishable because the defendant was named the custodian of the parties' minor children's 529 accounts, which had been previously established by the plaintiff, in the dissolution judgment. Thus, the transfer of the accounts from the plaintiff to the defendant was done in the context of the equitable distribution of marital property. In this case, however, the executor's request to have the 529 accounts transferred to him seeks, in effect, a postjudgment modification of the property distribution. The court lacks authority to modify the distribution of the parties' property after the dissolution judgment has become final. Callahan v. Callahan, 157 Conn.App. 78, 92, 116 A.3d 317 (2015).
C
In the alternative, the executor seeks an order (i) enjoining the defendant from using the funds in the 529 accounts for any purpose other than the children's college education, and (ii) directing the defendant to make payments from Emily's 529 account for her college education as required under paragraph 4.8 of the February 2013 separation agreement. The defendant contends that the executor is improperly seeking a post-majority educational support order because the defendant does not have access to Emily's ShareLink portal as required by the statute, which provides that the child shall " make available all academic records to both parents during the term of the order." General Statutes § 46b-56c(e)(4). In response, the executor maintains that he is seeking to enforce the provisions of the February 2013 separation agreement, not an educational support order.
Paragraph 4.8 of the February 2013 separation agreement expressly provides that the funds in the 529 accounts shall not be used for any purpose other than the college education of the children. Nothing in this paragraph is contingent on compliance with General Statutes § 46b-56c. The limitation on the use of the funds in the 529 accounts stands as a separate contractual obligation, apart from the specific terms of the statute. In other words, for purposes of paragraph 4.8, whether Emily makes the ShareLink portal available to the defendant is irrelevant; the defendant is required under the February 2013 separation agreement, incorporated by reference in the dissolution judgment, to use the funds in the 529 accounts for the children's college education and for no other purpose.
While paragraph 4.8 bars the defendant from using the 529 accounts for anything other than the college education of the parties' children, the question remains as to whether the defendant may nonetheless decline to apply the funds in Emily's 529 account to her educational expenses as long as she does not permit him to have access to the ShareLink portal. The defendant contends that General Statutes § 46b-56c requires that Emily make available to him all of her academic records before he is obligated to apply funds from her 529 account to pay for her college education. The court does not agree.
As paragraph 4.5 of the February 2013 separation agreement makes clear, the parties' obligation to share the responsibility for their children's educational expenses, either by agreement or pursuant to an educational support order entered under General Statutes § 46b-56c, does not arise until after " all available financial aid, scholarships, student loans, use of their 529 plans and earnings of the child are utilized." Because an educational support order would only come into play after the funds in Emily's 529 account have been applied to her educational expenses, the statute has no bearing on whether the funds in the 529 account are required to be used in the first instance.
D
The executor seeks leave to submit an affidavit of attorneys fees in accordance with Article XIX of the February 2013 separation agreement, which provides that " [i]f either party is required to bring a court action to enforce the terms of this Agreement, the moving party shall be entitled to attorneys fees and costs of the bringing of any such action from the other party if such moving party prevails." The executor shall submit a fee affidavit on or before April 20, 2017, and the defendant shall file any objection thereto on or before May 22, 2017. The court shall schedule further proceedings thereafter.
III
For the reasons set forth above, the defendant's oral motion to dismiss is DENIED, the executor's amended motion to compel (#151.00) is GRANTED, and the defendant's objection (#152.00) is OVERRULED. It is further ORDERED as follows:
1. As set forth in the February 2013 separation agreement, incorporated by reference in the dissolution judgment, the defendant shall not use the funds in the 529 accounts established for the benefit of the parties' minor children for any purpose other than the children's educational expenses;
2. The funds in the 529 account established for the benefit of Emily shall be applied to Emily's undergraduate educational expenses. Because Emily is not communicating with the defendant at this time, the executor shall act as the intermediary and shall advise the defendant of any expense that is to be paid from Emily's 529 account. The defendant shall make payment as directed by the executor within ten days of the date that the executor notifies the defendant of the expense to be paid; and
3. In accordance with Article XIX of the February 2013 separation agreement, the executor shall submit an affidavit of attorneys fees on or before April 20, 2017, and the defendant shall file any objection thereto on or before May 22, 2017. The court shall schedule further proceedings thereafter.