Barnard v. Barnard

• Decision Date: 27 February 1990
• Docket Number: No. 13822,13822
• Citation: 570 A.2d 690,214 Conn. 99
• Court: Connecticut Supreme Court
• Parties: Barbara BARNARD v. David C. BARNARD.

Page 690

570 A.2d 690

214 Conn. 99

Barbara BARNARD v. David C. BARNARD.

No. 13822.

Supreme Court of Connecticut.

Argued Dec. 8, 1989.

Decided Feb. 27, 1990.

Gaetano Ferro, Westport, with whom, on the brief, was Gina Pasquini, for appellant (defendant).

Ernest N. Abate, Stamford, for appellee (plaintiff).

Before HEALEY, SHEA, CALLAHAN, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

On February 4, 1986, the parties' marriage was dissolved by a judgment that incorporated the provisions of a twenty-one page separation agreement (agreement) of the parties, also dated February 4, 1986. On December 1, 1988, the defendant husband filed a motion for interpretation or clarification of that agreement maintaining that the parties were unable to agree upon the interpretation of Article III of that agreement. That article is captioned "Alimony and Support and Education." The trial court, Nigro, J., held a hearing ¹ on this motion. The defendant has appealed from the trial court's interpretation of Article III. Pursuant to Practice Book § 4023, we transferred the case to this court.

Initially, it is useful to set out certain background gleaned from the record. At the time of the dissolution, the parties had two children: Amy, born July 25, 1967, and Brett, born April 2, 1971. At that time, Amy was in her freshman year at Tufts and Brett was attending a private secondary school. At the time of the hearing on the defendant's motion on January 23, 1989, Amy was a senior at Tufts and she planned to go to law school in the fall of 1989. ² At that time, Brett was a senior at the Loomis-Chaffee School in Windsor and was going to college in the fall of 1989. The plaintiff wife had remarried on June 20, 1987, approximately one year and four months after the date of the dissolution.

The agreement encompasses eighteen "Articles," some of which are divided into numbered paragraphs. Article III, upon which the parties have focused, is divided into ten numbered paragraphs, ³ some of which, in turn, are further subdivided into subparagraphs. As will be seen below, the defendant's obligations concerning the education and support of the Barnard children, that are at issue here, varied depending upon whether he was paying alimony. Paragraphs 3.4 through 3.8 set out those obligations when he was paying alimony. [214 Conn. 103] Paragraph 3.10, however, concerned the defendant's obligations to pay for such education and support in the event his obligation to pay alimony terminated for any reason, except his death, within five years of the date of the dissolution decree.

[214 Conn. 104] Paragraph 3.4 of Article III provides that the plaintiff must pay the "total cost of the private preparatory school education" of his son, Brett, as "total cost" was defined in that paragraph. ⁴ It also provides that so long as the defendant was paying alimony to the plaintiff, she acknowledged that she would be paying the entire support obligation for Brett. Paragraph 3.5 provides, inter alia, that the defendant was "to continue to pay the total cost of the private college education of Amy [his daughter] ... at Tufts University through her freshman year, and the total cost of her college education, not to exceed such total cost at the University of Connecticut, during her sophomore, junior and senior years. Said obligation shall continue until Amy receives her degree from college but in no event beyond June 30, 1990. ^* ..." The asterisk refers to a footnote to paragraph 3.5 and that footnote has been the subject of conflicting interpretations by the parties. This footnote provides: "In the event the wife is remarried and there are two children in college at the same time, the husband agrees that he will contribute to the educational expense at a total cost for each child not to exceed such total cost at the University of Connecticut."

Paragraph 3.6 provides that the "Husband shall pay the total cost of the college education of Brett ... not to exceed such total cost at the University of Connecticut during his junior and senior years. Said obligation shall continue until Brett receives his degree from college but in no event beyond June 30, 1994...." Paragraph 3.7 provides that the "Husband further agrees to pay for the post graduate education of said children in accordance with his financial abilities to do so at the time of their election to obtain such education. In no event shall such obligation extend beyond three (3) years after their graduation from an undergraduate school."

Paragraph 3.8 provides: "The Husband's obligation to provide education to his children as limited above is predicated upon his present disposable income. In the event that the same shall increase substantially because of the remarriage of the Wife or in a manner unforeseen at the time of entering this agreement, then in that event the obligation of the parties to pay for expenses of education as set forth in paragraphs 3.4, 3.5, 3.6 and 3.7 shall be reviewed to be brought into line with the Husband's ability to pay."

Paragraph 3.9, which concerns redress to the Superior Court, provides: "In the event that the parties cannot agree upon the Husband's obligation or abilities under this Article III, either party may petition the Superior Court, Judicial District of Stamford/Norwalk, for a determination of the same, and this agreement shall be deemed to have been amended in accordance with and to the extent of any finding and order of said Court."

Paragraph 3.10, which is the final paragraph set out under Article III, is, in turn, further subdivided into six subparagraphs. Its introductory paragraph states the following: "In the event that the Husband's obligation to pay alimony to his Wife shall terminate for any reason except for his death, within five (5) years from the date of the entry of [this] decree, the Husband's obligation to provide education for his children shall be amended as follows...."

The trial court, in its memorandum, pointed out that the defendant had specifically asked it to determine the extent to which the agreement had fixed his obligation to pay for the postsecondary school education of Amy and Brett. The trial court noted that the footnote to paragraph 3.5 and its effect was at the center of the parties' dispute and particularly the meaning of the term "college" in that footnote. It interpreted the term "college" in the footnote to paragraph 3.5 to mean "four years of undergraduate study," the "standard four-year undergraduate course" and not postgraduate school. In so doing, the trial court rejected the defendant's claim that "college" included "any education after secondary school" including "law school or any other post-undergraduate college education." It supported that conclusion by pointing to other paragraphs of Article III which used such terms as "post graduate education" as in paragraph 3.7. The court referred to paragraph 3.5, determining that the college education in this paragraph involving Amy clearly was intended to mean four years of undergraduate study, to paragraph 3.10 which the trial court said "carefully distinguish[es]" between "private 'college' education" and "post graduate education" and to paragraph 3.6 where it maintained that "college" education, as applied to Brett, could only be read as meaning the four undergraduate years ending with the senior year.

In agreeing with the plaintiff that "college" in the footnote to paragraph 3.5 meant "college" in the four-year undergraduate sense, it also accepted her claim that the defendant's obligations, by virtue of her remarriage, were fixed by paragraph 3.10. In reaching this latter conclusion, it rejected the defendant's claim that paragraph 3.10 must be interpreted to incorporate the footnote to paragraph 3.5, including specifically his claim as to the interpretation of "college" in that footnote to mean any education after secondary education including postgraduate education or law school. The trial court noted that under paragraph 3.10, the defendant assumed "a significantly larger role in meeting the educational costs of his children" should his alimony obligation terminate, as it did. It also determined that paragraph 3.10 did not condition the defendant's obligation upon his ability to pay. It further decided that paragraph 3.9 did not authorize it to modify, in accordance with the defendant's ability to pay, as he contended, his obligations set forth in paragraph 3.10.

In his appeal, the defendant claims that the trial court erred in concluding that his obligation to pay for the postmajority education of his children was not subject to modification and, therefore, further erred in refusing to consider his financial ability to pay for the postmajority education of the Barnard children.

The defendant claims that his financial ability to pay for the postmajority education of the Barnard children is a criterion that pervades Article III of the agreement and for that he refers to paragraphs 3.5 through 3.8 of that article. He contends that upon the plaintiff's remarriage, his obligations to pay for the education and support of the Barnard children are not controlled by [214 Conn. 108] paragraph 3.10 but are limited as set out in the footnote to paragraph 3.5. In addition, he argues that paragraph 3.9 explicitly contemplates and allows recourse to the Superior Court "[i]n the event ... the parties cannot agree upon [his] obligation or abilities under ... Article III...." He maintains, nevertheless, that the trial court ignored paragraph 3.9 when it concluded that paragraph 3.10 did not condition his obligation thereunder upon his ability to pay. Thus, he argues, the trial court gave no effect to paragraph 3.9 and rendered it a nullity. By failing to give the required consideration and effect to paragraph 3.9, he contends that the trial court erred in not considering the agreement as a whole and not giving efficacy to each part where appropriate.

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