Kirwan v. Kirwan

187 Conn.App. 375

202 A.3d 458

Chelsea Chapman KIRWAN

v.Laurence KIRWAN

AC 40789

Appellate Court of Connecticut.

Argued October 25, 2018

Officially released January 22, 2019

Laurence Kirwan, self-represented, the appellant (defendant).

Joseph T. O'Connor, Stamford, for the appellee (plaintiff).

Alvord, Prescott and Norcott, Js.

ALVORD, J.

The present appeal arises following the trial court's October 23, 2015 judgment dissolving the marriage of the plaintiff, Chelsea Chapman Kirwan, and the self-represented defendant,¹ Laurence Kirwan. The judgment incorporated by reference a pendente lite arbitration award that had resolved many of the issues raised in the dissolution action, including alimony, the distribution of marital assets, and the enforceability of a premarital agreement. Both the parties' arbitration agreement and the arbitrator's award, however, expressly reserved for the Superior Court resolution of child related financial issues.² Following an evidentiary hearing, the court, on December 7, 2016, issued child support orders, which, by agreement of the parties, were made retroactive to the date of the dissolution judgment. On that same date, the court also ordered the parties to make determinations regarding their children's private middle school education in accordance with their parenting plan. In this appeal, the defendant challenges two subsequent judgments of the trial court, ordering him to pay for a portion of his children's private middle school tuition³ and finding him in contempt when he failed to do so.

On appeal, the defendant raises various repetitive and overlapping claims of error, which this court has distilled into the three inclusive issues addressed in this opinion. The core of the defendant's claims are that the court erred in (1) ordering him to pay 75 percent of his children's private middle school tuition for the 2015–2016, 2016–2017, and 2017–2018 academic years, because their enrollment in the school was not decided pursuant to the parties' parenting plan, (2) ordering him to pay for a portion of the 2015–2016 school year tuition that was incurred before October 23, 2015, the date of the dissolution, and (3) finding him in contempt. We disagree and, accordingly, affirm the judgments of the trial court.

The following facts and procedural history, relevant to our resolution of the defendant's claims in the present appeal, were recently set forth by this court in Kirwan v. Kirwan , 185 Conn. App. 713, 197 A.3d 1000 (2018).⁴ "The parties were married in 2001. The defendant is a plastic surgeon with offices in New York, Norwalk, and London, as well as a consultant and a professor of plastic surgery. The plaintiff is college educated and worked in pharmaceutical sales until shortly after she married the defendant, at which time she worked for the defendant in his medical practice. The parties have three minor children together, one of whom has special needs. Prior to their marriage, the parties entered into a premarital agreement that, in relevant part, limited the plaintiff's alimony in the event of divorce to $50,000 a year for five years and allocated 45 percent of the value of the marital home to the plaintiff as her share of marital property. In September, 2012, the plaintiff initiated an action to dissolve the parties' marriage.

"On May 26, 2015, the court, Tindill, J. , approved an agreement by the parties to enter into binding mediation/arbitration of the dissolution action. Pursuant to the parties' arbitration agreement, which was made an order of the court, ‘[t]he parties agree[d] that the following issues in their action for dissolution of marriage shall be the subject of mediation and, if the parties are unable to resolve these issues via mediation, to binding arbitration ....’ The list of issues to be resolved in arbitration included the validity and enforceability of the premarital agreement; the validity of an alleged rescission of that premarital agreement; a determination of alimony in accordance with General Statutes § 46b-82 ; an equitable division of marital property, assets, and liabilities pursuant to General Statutes § 46b-81 ; division of attorney's fees and guardian ad litem fees; and any other relief deemed appropriate by the arbitrator ‘except as it pertains to child custody and issues of child support.’

"On August 4, 2015, the arbitrator, former Superior Court Judge Elaine Gordon, issued her arbitration award. As a preliminary matter, the arbitrator determined that the parties' premarital agreement was unconscionable, and thus unenforceable, due to ‘the present, uncontemplated circumstances’ of the parties.⁵ The arbitrator issued a number of orders regarding alimony and the distribution of marital assets, including an order directing the sale of the marital home. In support of her orders, the arbitrator made several factual findings, including that ‘[t]he defendant's annual [gross] income is found to be approximately $400,000 per year based on his income tax returns, business financial statements and the information he has provided to lending institutions on his applications.’ As previously noted, the arbitration award indicated that ‘[t]he issues of custody, access, child support, maintenance and cost of medical insurance for minor children and unreimbursed medical expenses are reserved to the Connecticut Superior Court.’

"On September 1, 2015, the defendant filed a motion asking the court to confirm the arbitration award and to render judgment dissolving the parties' marriage in accordance with the arbitration award. On that same date, the plaintiff filed a motion asking the court to issue orders on the unresolved matters of child support and postsecondary educational expenses. Neither party filed an objection to the other party's motion, and the matters were set down for a hearing on October 23, 2015. At that time, the court rendered a judgment of dissolution of marriage that incorporated by reference the arbitration award and subsequent clarification. The parties agreed that the court would determine the defendant's child support obligations, including the issue of unreimbursed medical expenses and child care, after an evidentiary hearing, and that child support obligations would be made retroactive to the date of dissolution." (Footnotes altered.)

The following additional facts, as found by the trial court, and procedural history are relevant to our resolution of this current appeal by the defendant. On December 7, 2016, following a five day hearing on child related financial orders as well as several postjudgment motions, the court issued a memorandum of decision ordering, inter alia, that the parties were to make determinations regarding their children's private middle school education in accordance with their parenting plan.⁶ The court also ordered that the parties would share the children's educational expenses, with the plaintiff responsible for 25 percent and the defendant responsible for 75 percent.

During the course of the marriage and after the divorce proceeding was filed, the parties' children had attended private school at the French-American School of New York from kindergarten through the fourth grade, as the parents agreed that their children should have a more European focused education. The French-American School of New York, upon the plaintiff's inquiry, recommended Saints John and Paul School for the children because it had a similar program but cost less money. The children were accepted into middle school at Saints John and Paul School beginning in the fall of 2014 for their fifth grade year. The middle school at Saints John and Paul School ran from fifth grade through eighth grade.

In January, 2015, the defendant visited Saints John and Paul School, where his daughters were enrolled in fifth grade. The defendant met with the school's assistant principal. During the visit, he asked questions about the school and his children's French language studies. At that time, he expressed no objection to his children being educated at Saints John and Paul School.

On January 19, 2017, the plaintiff filed a motion for an order regarding the defendant's payment of his share of the private middle school tuition. In this motion, the plaintiff requested that the court order the defendant to pay $36,000, representing his share of the tuition costs for the 2015–2016 and 2016–2017 academic years. The plaintiff later requested that the defendant also pay his share of the 2017–2018 tuition costs. In objecting to the plaintiff's motion for an order, the defendant argued that the children's enrollment in private middle school had not been made in compliance with the May, 2015 parenting plan and that he was therefore not obligated to pay his share of the tuition costs. On June 22, 2017, the plaintiff filed a motion seeking an immediate hearing on her motion for order, wherein she also replied to arguments raised in the defendant's objection to her motion for an order.

On July 17, 2017, the trial court, Heller, J. , on the record, granted the plaintiff's January 19, 2017 motion for order and overruled the defendant's objection thereto. Specifically, the court found that "under the orders that were entered by Judge Tindill in December, 2016 retroactive to October, [2015], the defendant is obligated to pay 75 percent of the tuition that is past due from 2015 to 2016 and 2016 to 2017, and for the coming year of 2017 to 2018." On July 31, 2017, the defendant filed a motion to reargue. On August 25, 2017, the court issued a written order summarily denying that motion. The defendant then filed this timely appeal.

On September 11, 2017, the defendant filed a motion for articulation of the trial court's July 17, 2017 decision. The plaintiff filed an objection thereto. The trial court summarily denied the motion for articulation and sustained the objection thereto. The defendant then filed a motion for review with this court.

On January 18, 2018, this court ordered the trial...