Culver v. Culver

127 Conn.App. 236

17 A.3d 1048

Margaret CULVER

v.Michael CULVER.

No. 30500.

Appellate Court of Connecticut.

Argued Oct. 18, 2010.Decided March 15, 2011.

Karen L. Dowd, with whom were Brendon P. Levesque, Hartford, and, on the brief, Dana M. Hrelic, for the appellant (defendant).Samuel V. Schoonmaker IV, with whom, on the brief, were Edward Nusbaum, Westport, and Wendy Dunne DiChristina, for the appellee (plaintiff).

ROBINSON, BEAR and BORDEN, Js.BORDEN, J.

The defendant, Michael Culver, appeals from the judgment of the trial court granting certain relief requested in the postjudgment motion for contempt filed by the plaintiff, Margaret Culver. The defendant claims that the court improperly (1) modified his existing child support order, (2) denied his requested equitable relief and (3) awarded attorney's fees to the plaintiff. We disagree and, accordingly, affirm the judgment of the trial court.

The record discloses the following relevant factual and procedural history. On January 14, 1994, the court dissolved the parties' marriage, finding that it had broken down irretrievably. At the time of dissolution, the parties entered into a written stipulation that was incorporated by reference into the dissolution judgment. Article VII of the stipulation addressed the issue of child support for the parties' minor twin daughters, C and M, and provided, inter alia, that the defendant would pay monthly child support in the amount of $2500 ($1250 per child). Additionally, the stipulation provided that the plaintiff would have sole custody of the children and that she would get the defendant's consent if the children were to go to private school. The stipulation also included a clause that stated: “No modification or waiver of any of the terms of [the stipulation] shall be valid unless the same shall be in writing and executed with the same formality as [the stipulation].” (Emphasis added.) In addition, the court ordered, by way of its dissolution judgment, that if either party were found in contempt or filed a motion in connection with article VII of the stipulation, “the nonprevailing party [would] pay the other [party's] reasonable attorney's fees and costs.”

In or about November, 1996, the defendant prepared an amendment to the stipulation (amendment) that provided, inter alia, for an increase in his child support obligation from $2500 to $3500 per month. Both parties signed the amendment, but it was not witnessed or acknowledged and, therefore, was not executed with the formality required by the stipulation for modification. Thereafter, the defendant filed a motion to modify the dissolution judgment in accordance with the amendment, but no action was taken on the motion, and it never became an order of the court.

In the fall of 1998, the plaintiff and the defendant had a series of discussions concerning their children's education and ultimately agreed that both C and M should attend private school.¹ The parties, thereafter, orally agreed to modify the stipulation with respect to the defendant's child support obligation. At trial, the plaintiff testified that, pursuant to the oral agreement, the defendant's monthly $2500 child support obligation essentially would be waived, and, instead, he would pay the private school and college expenses for their children. The defendant, on the other hand, claimed that the oral agreement only contemplated his paying for the children's private school tuition and that he never agreed to pay for their college expenses. It is undisputed that the oral agreement never was reduced to a writing and that neither party requested the court's approval of the modification.

Pursuant to the oral agreement, the defendant ceased paying child support in September, 1998, and began paying the private school expenses for C and M. This fiscal arrangement continued until 2006, when the children began to matriculate at their respective colleges and the defendant refused to render payments toward one child's college tuition.² The plaintiff, thereafter, borrowed funds to pay for that child's college expenses.

In August, 2006, the plaintiff filed a motion for contempt, claiming that the defendant had failed to comply with his child support obligations since September, 1998. In her motion, she sought past due child support and requested that the defendant be found in contempt for his failure to make those payments and that he pay her reasonable costs and attorney's fees pertaining to the motion. In response, the defendant filed a four count cross complaint that sought relief under theories alleging abuse of process, breach of contract, quantum merit and fraud.³ In May, 2007, the plaintiff filed another motion for contempt that was substantially the same as the August, 2006 motion. In response to the May, 2007 motion, the defendant also raised three special defenses to the plaintiff's claim for past due support, namely, equitable estoppel, waiver and laches. Those defenses were premised on the fact that the defendant, pursuant to the parties' oral agreement, had paid for the children's private schooling expenses in lieu of making child support payments. According to the defendant, these payments should have been credited against the plaintiff's claim for past due support. At trial, the defendant provided evidence demonstrating that he had paid $478,728.56 for private school room, board and tuition for his children pursuant to the parties' oral agreement.

The court, by memorandum of decision, first found that the oral agreement concerning the defendant's child support obligation was ineffective to modify the original written stipulation that had been incorporated into the dissolution judgment. The court, therefore, found that under the terms of the stipulation, the defendant owed the plaintiff $225,000 in child support. The court considered each of the defendant's cross claims and special defenses in turn and rejected them. Accordingly, the court ordered the defendant to pay the plaintiff $225,000 for past due child support and refused to award him any credit for payments he had made toward C's and M's private schooling. The court also awarded the plaintiff attorney's fees in the amount of $25,000. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that by ordering him to pay the $225,000 child support arrearage, the court improperly modified the existing child support order. He contends that by failing to credit the payments he made toward C's and M's private school expenses against this arrearage, the court modified the support order absent a motion requesting such relief.⁴ See Guss v. Guss, 1 Conn.App. 356, 361, 472 A.2d 790 (1984) (trial court cannot modify child support orders on own initiative). We are not persuaded.

We begin by setting forth certain legal principles relevant to this claim. “In Connecticut, the general rule is that a court order must be followed until it has been modified or successfully challenged. Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998); Behrns v. Behrns, 80 Conn.App. 286, 289, 835 A.2d 68 (2003), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004). Our Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order of the court must be obeyed until it has been modified or successfully challenged.... Sablosky v. Sablosky, [258 Conn. 713, 719, 784 A.2d 890 (2001) ]....” (Citations omitted; internal quotation marks omitted.) Riscica v. Riscica, 101 Conn.App. 199, 200–201, 921 A.2d 633 (2007). Additionally, “[i]n a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order.” (Emphasis in original; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn.App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010).

Although the defendant submitted evidence that demonstrated that he had contributed nearly $480,000 to his children's private school expenses—during which time he did not pay child support to the plaintiff in the amount of $225,000—we disagree with his assertion that the court's order retroactively increased his child support obligation. The effect of the court's order did not modify the defendant's support obligation in a manner that was inconsistent with the parties' original stipulation. Simply stated, the order itself did not require him to make any payments beyond those legally agreed on by the parties and incorporated into the dissolution judgment.

As stated previously, upon the dissolution of their marriage, the parties stipulated that the defendant would be obligated to pay monthly child support in the amount of $2500 to the plaintiff, and that agreement was incorporated into the dissolution judgment. The defendant's voluntary acceptance of a subsequent obligation to pay private school tuitions in no way lessened his court-ordered child support obligation. The court properly concluded that the court-ordered obligation was not modified by the parties' subsequent oral agreement that was not made an order of the court. See Albrecht v. Albrecht, 19 Conn.App. 146, 151, 562 A.2d 528 (“[d]ecrees in a dissolution action cannot be modified by acts of the parties without further decree or order by the court”), cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). The court also found, and the record accurately reflects, that his nonpayment of child support for nearly eight years following the parties' oral agreement resulted in an arrearage of $225,000. Accordingly, we cannot conclude that the court's order directing the defendant to pay this past due support arrearage amounted to a modification, retroactive or otherwise, of the existing child support order.

II

We next turn our attention to the defendant's claim that the court improperly determined that an award for past due...