Goold v. Goold, 4650

• Court: Appellate Court of Connecticut
• Citation: 527 A.2d 696,11 Conn.App. 268
• Docket Number: No. 4650,4650
• Parties: , 56 USLW 2067 Janice GOOLD v. Peter GOOLD
• Decision Date: 16 July 1987

Page 696

527 A.2d 696 11 Conn.App. 268, 56 USLW 2067 Janice GOOLD
v.
Peter GOOLD No. 4650. Appellate Court of Connecticut. Argued March 4, 1987.
Decided June 16, 1987.
Certification Denied July 16, 1987.

Page 698

[11 Conn.App. 269] Gaetano Ferre, for appellant-appellee (defendant).

Ellen B. Wells, for appellee-appellant (plaintiff).

Before [11 Conn.App. 268] DUPONT, C.J., and BORDEN and DALY, JJ.

[11 Conn.App. 270] DUPONT, Chief Judge.

The defendant husband appeals and the plaintiff wife cross appeals from the trial court's calculation, in a contempt proceeding, of the amount of child support arrearages owed by the defendant. The trial court found that the defendant was in arrears in the amount of $27,952.46 for the years 1980 through 1983. The defendant claims that the trial court erred (1) by refusing to credit the defendant with payments made for the support of his son during the time period in which the son was in his physical custody, (2) by including the profit realized from the exercise of a stock option in its assessment of his income for 1982, (3) by failing to reduce his income in 1982 and 1983 by net rental losses realized by him in both years, and (4) in concluding that one half of a sum listed on a joint tax return as income realized from pensions and annuities was attributable to him without any direct evidence to that effect. In her cross appeal, the plaintiff alleges that the trial court erred (1) by concluding that only a portion of the distribution from an employee thrift incentive plan constituted income for purposes of calculating child support, (2) by giving the defendant credit against his arrearages for payments made for the support of a child after she reached the age of majority, and (3) in failing to award counsel fees.

The trial court found that the marriage of the parties was dissolved on December 21, 1976, and that the decree incorporated by reference a separation agreement dated April 1, 1976. The agreement provided that the plaintiff would have custody of the parties' three children, Geoffrey, Jennifer, and Laura. It further provided that in the event that the plaintiff remarried, the defendant would pay to the plaintiff child support, in the amount of $416.66 per month, for the support of each child, "to commence from the date of such remarriage, until said child dies, marries, becomes wholly self-supporting, [11 Conn.App. 271] or attains the age of 21 years...." In addition, the defendant was required to pay to the plaintiff as child support for each child the sum of 10 percent of the defendant's income that exceeded $67,500 annually.

The plaintiff remarried in 1980. During that year, Geoffrey experienced difficulties in the local public school system. After consulting with a counseling physician, both the plaintiff and the defendant agreed that Geoffrey should attend a private school in New Canaan. The parties further agreed that it would be in Geoffrey's best interests to live with his father nearer to the private school. Geoffrey thereafter moved in with the defendant in May of 1980, and the defendant immediately ceased making any child support payments to the plaintiff for their son. In the summer of 1980, the plaintiff requested in writing that the defendant continue child support payments for Geoffrey, but the defendant refused to make such payments. Geoffrey continued to reside with the defendant for two years until he reached the age of eighteen. During that time period, the plaintiff maintained a bedroom for Geoffrey at her house, and continued to purchase clothing for her son. Because the defendant traveled frequently, Geoffrey spent a number of weekends with the plaintiff. Moreover, the plaintiff took Geoffrey on vacation with her.

On May 5, 1983, the plaintiff filed a motion for contempt against the defendant. In that and various amendments to such motion, she moved the court to find the defendant in contempt of court for failure to pay her the correct amount of child support for their three children. After a hearing, the trial court did not [11 Conn.App. 272] hold the defendant in contempt, but ordered him to pay $27,052.46 to the plaintiff for unpaid child support. ¹

Page 699

I

In his first claim of error, the defendant alleges that the trial court erred in its calculation of the arrearage owed to the plaintiff for child support for their son Geoffrey during the two years that Geoffrey resided with him. The defendant claims that he is entitled to a credit for the amount expended by him for Geoffrey during that time period, and that the trial court erred in refusing to recognize such credit.

A considerable conflict exists among various courts as to whether or not any credit should be given to a parent ordered by a court to make child support payments to the other parent, for payments made on behalf of a child while that child is actually in his physical custody. See annot., 47 A.L.R.3d 1031; annot., 2 A.L.R.2d 831; 24 Am.Jur.2d, Divorce and Separation § 1077. Some courts have recognized that a parent is not entitled as a matter of law to credit for such voluntary expenditures made in a manner other than that specified by the divorce decree. See, e.g., annot., 47 A.L.R.3d, supra, § 3. ² Other courts hold that situations [11 Conn.App. 273] may arise in which equitable considerations would permit a parent to credit, against past due support payments, voluntary expenditures made on behalf of the child. Id., § 4. ³ No universal or general principle has been articulated by the latter courts. Rather, the circumstances of each individual case are considered in determining whether credit can be allowed. 2 A.L.R.2d 831, 833. In all such cases, however, courts have recognized that the decision to allow or disallow credit lies within the sound discretion of the trial court. See, e.g., Hamilton v. Phillips, 494 So.2d 659, 661 (Ala.Civ.App.1986).

In support for his claim that the circumstances of this case warrant the equitable allowance of credit, the defendant asserts that the actual amounts paid by him for the support of Geoffrey exceeded the amounts required by the decree to be paid to the plaintiff as child support. ⁴ The

Page 700

defendant maintains, therefore, that by [11 Conn.App. 274] ordering the defendant to pay child support for Geoffrey, the trial court conferred a windfall upon the plaintiff. He further maintains that he is entitled to credit because by directly supporting the child, he substantially complied with the decree of dissolution. See H. Clark, Law of Domestic Relations § 15.3 (1968).

Although no Connecticut case has addressed the precise issue presented in this case, we have previously recognized that in some domestic cases unique or compelling circumstances may justify or require equitable relief. Guss v. Guss, 1 Conn.App. 356, 363, 472 A.2d 790 (1984), citing LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). The allowance of a credit against past due child support payments has therefore been acknowledged as being appropriate in limited circumstances. These circumstances must be limited in order to prevent hardship to support recipients and to protect "their expectations and [enable] them to rely upon the continuing [support] obligation of the paying spouse...." as provided in a final decree. Sanchione v. Sanchione, 173 Conn. 397, 405-406, 378 A.2d 522 (1977). Although there is no general rule as to when circumstances require the allowance of such credit, factors which have been considered by various courts in [11 Conn.App. 275] reaching such decision include (1) whether the father brought a motion for modification of the support order; see Fowler v. Fowler, 156 Conn. 569, 573, 244 A.2d 375 (1968); Rempt v. Rempt, 5 Conn.App. 85, 496 A.2d 988 (1985); (2) whether the parties expressly provided in their separation agreement that the father may deduct or adjust support payments when the child is no longer in the mother's custody; see Swayze v. Swayze, 176 Conn. 323, 408 A.2d 1 (1978); Sweeny v. Sweeny, 9 Conn.App. 498, 519 A.2d 1237 (1987); Guss v. Guss, supra, 1 Conn.App. at 362, 472 A.2d 790; and (3) whether the mother has in some manner consented to accept the father's direct support of the child as an alternative method of payment of child support. See annot., 47 A.L.R.3d 1031, 1035-36; 24 Am.Jur.2d, Divorce and Separation § 1077, p. 1062; see also Bradford v. Futrell, 225 Md. 512, 518-19, 171 A.2d 493 (1961).

We conclude that the trial court's denial of credit in the present case was not an abuse of discretion. The trial court noted that the defendant did not ever bring a motion for modification of the support order, although that recourse was always available to him. See Bozzi v. Bozzi, 177 Conn. 232, 238, 413 A.2d 834 (1979); Fowler v. Fowler, supra, 156 Conn. at 573, 244 A.2d 375; Smith v. Smith, 443 So.2d 43 (Ala.Civ.App.1983); McDaniel v. Winter, 412 So.2d 282 (Ala.Civ.App.1982); Hanks v. Hanks, 334 N.W.2d 856 (S.D.1983); Bradley v. Fowler, 30 Wash.2d 609, 192 P.2d 969, 975 (1948).

The trial court also found that the parties had not provided for such credit to be given to the defendant in their separation agreement. Cf. Swayze v. Swayze, supra. The agreement provided that child support would terminate only when "said child dies, marries, becomes wholly self-supporting, or attains the age of 21 years." The child's change in residence was not intended by the parties to constitute sufficient cause for the termination of child support. Moreover, the [11 Conn.App. 276] agreement provided that the defendant would be credited in only a few circumstances relating to the educational expenses of the children. Paragraph 5.7 of the separation agreement provided that in the event that a scholarship was granted, credit was to be given to the defendant for the payment of educational expenses. ⁵

Page 701

Furthermore, a credit of $100 per month was to be given to the father if he paid for all of the educational expenses...