Cleveland v. Cleveland

• Decision Date: 09 July 1971
• Citation: 161 Conn. 452,289 A.2d 909
• Court: Connecticut Supreme Court
• Parties: Cynthia B. CLEVELAND v. John L. CLEVELAND, Jr.

Page 909

289 A.2d 909

161 Conn. 452

Cynthia B. CLEVELAND v. John L. CLEVELAND, Jr.

Supreme Court of Connecticut.

July 9, 1971.

Frederick L. Comley, Bridgeport, with whom was Robert J. Cooney, Bridgeport, for appellant (defendant).

Ralph P. Dupont, New London, with whom was Antoinette L. Dupont, New London, for appellee (plaintiff).

Before HOUSE, C.J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ.

RYAN, Associate Justice.

On December 12, 1967, the plaintiff was granted a decree of divorce from the defendant and was given the care and custody of four minor children, subject to visitation rights by the defendant in accordance with a carefully detailed schedule. The defendant was ordered to pay to the plaintiff the sum of $1500 per year for the support of each of the children. He was also ordered 'to pay the expense of board, room and tuition of each child in boarding school or college, provided that he is consulted with and approves those educational institutions before matriculation.' The judgment further provided that '(t)he support payments for each child in boarding school or college shall be reduced fifty per cent for each month the child is away from home in school or college, while the defendant is paying that child's educational expenses.' The defendant was also required to pay all medical and dental expenses exceeding $100 for any one accident or illness per child. The plaintiff was awarded as permanent alimony the sum of $160,000 in cash or marketable securities approved by the plaintiff, the family home in Ridgefield, Connecticut, a summer home on Block Island and an automobile. The defendant was also required to place $40,000 in escrow '(t)o insure the payments for support, education and medical and dental expenses.'

On August 13, 1969, the plaintiff filed a motion requesting that the judgment be modified, inter alia, by deleting therefrom any requirement that the defendant approve educational institutions prior to matriculation therein by the minor children. The plaintiff also requested that the defendant be ordered to pay to the plaintiff the sum of $11,350 expended by her for the educational expenses of the minor children, less any deduction in the monthly support payments to which the defendant may be entitled. The trial court modified the judgment to provide that the defendant shall pay for the education of the minor children at boarding school and college provided he is advised three weeks in advance of the placement of any of the minor children in a school other than the school attended immediately prior thereto and requiring the defendant to pay a reasonable sum for the support of the minor children instead of $1500 per year for each child. The defendant appealed to this court.

The defendant assigns error in that there was no claim by the plaintiff of a material change in circumstances on which to predicate a modification of the judgment; that there was no finding by the trial court of a material change of circumstances; and in that the trial court was without jurisdiction to modify the judgment retroactively to require the defendant to pay the sum of $11,350 less any reduction in monthly support payments to which the defendant may be entitled. The defendant also assigns error in the finding and conclusions of the trial court. No evidence was offered by either party except a stipulation that the plaintiff expended the sum of $11,350 for private schools for the minor children. Counsel argued at length the claims of their respective clients and the court's finding would appear to be predicated upon their statements and briefs.

The following facts were found by the court. The plaintiff and defendant have four minor children, issue of their marriage: Thomas, born June 24, 1952; John, born October 17, 1953; David, born September 14, 1957, and Amy, born July 19, 1962. From May, 1967, to June 19, 1969, the plaintiff expended the sum of $11,350 for private schools for the three oldest children. Thomas attended The Forman School, Litchfield, Connecticut, from September, 1967, to June, 1969, and is presently enrolled at Dublin School, Dublin, New Hampshire. John attended Harvey School, Katonah, New York, during the academic year 1967-68 and, thereafter, in September, 1968, matriculated at Kent School, Kent, Connecticut, which he is still attending. David matriculated at Harvey School, Katonah, New York, in September, 1967, and he is now attending that school. The plaintiff has paid the expenses for room, board and tuition for the academic years 1967-68 and 1969-70, inclusive, $6150 on account of Thomas, $3135 on account of John, and $1250 on account of David. The defendant has paid the full monthly support payments for each of the three children as ordered by the terms of the judgment, and, therefore, he is entitled to a credit against any sum found due to the plaintiff for educational expenses. The defendant concedes that from time to time he has been notified by the plaintiff of her choice of schools for the children in question. The defendant has not approved the schools selected by the plaintiff and has refused to pay the cost of tuition and other fees for these schools except in the case of the Harvey School for the academic year 1967-68 and at the Kent School for the current academic year, on behalf of his son, John. Neither the plaintiff nor the defendant claims any change in financial circumstances between the date of the original judgment and the filing of the motion to modify the judgment. At all times since the entry of judgment, the defendant has claimed that the judgment gives him a voice in the choice of schools, including consideration of public schools as well as private schooling. The parties communicated with one another regarding the choice of a public versus a private school for their son, Thomas, for the current academic year but were unable to agree. There has been much bitterness between the parties during the course of these proceedings. The defendant never offered to testify as to his reasons for disapproving the plaintiff's choice of schools and makes no claim that these choices were other than recognized private boarding schools.

The court concluded, inter alia, that the order to pay the educational expenses of the children, provided the defendant is consulted and approves the educational institutions, had not been complied with by the defendant; that the defendant was given full and ample opportunity in the choice of schools but failed to take advantage of it; that the words 'provided that he is consulted with and approves those educational institutions before matriculation,' when used in the context of the judgment, are intended to afford the defendant protection from unreasonable educational expenses; that the judgment does not require the court to arbitrate, on an annual basis, the parties' disputes over the schools their children should attend; that the grant of custody of the minor children to the plaintiff conferred on her the right and duty to make all necessary decisions respecting the educational needs of the children; and that the plaintiff and the defendant have been manifestly unable to cooperate in the choice of schools. The defendant was ordered to pay $8660 to the plaintiff as reimbursement for educational expenses incurred on behalf of the children through July 30, 1969. The judgment was modified in two respects, as indicated.

The determination of the conflicting claims of the parties concerning the claimed indebtedness of the defendant to the plaintiff for the educational expenses of the children requires an interpretation of the judgment rendered and, unlike a request for modification of a judgment, is not dependent on...