Guille v. Guille

• Decision Date: 14 May 1985
• Court: Connecticut Supreme Court
• Parties: Mary GUILLE v. Peter GUILLE, Jr.

Page 175

492 A.2d 175

196 Conn. 260

Mary GUILLE v. Peter GUILLE, Jr.

Supreme Court of Connecticut.

Argued Feb. 15, 1985.

Decided May 14, 1985.

Carolyn P. Kelly, Groton, for appellant (defendant).

Thomas B. Wilson, New London, with whom, on the brief, were Thomas A. Bishop and Kerin M. Woods, New London, for appellee (plaintiff).

Harold M. Lubin, Gales Ferry, for minor children.

Before HEALEY, PARSKEY, SHEA, KLINE and BRENNAN, JJ.

PARSKEY, Associate Justice.

The principal issue in this case is whether a court may properly delete from a judgment of marital dissolution a provision that would preclude any future judicial modification of the terms governing child support contained in the original divorce decree. Six years after the marriage of the parties was dissolved, the trial court that had entered the judgment of dissolution granted a motion, brought on behalf of the parties' minor children, to open the judgment and delete therefrom a provision precluding modification of custody and child support. The defendant father appeals from the trial court's decision, claiming that the court lacked jurisdiction to open the earlier judgment and alter its terms, and that even if the court had jurisdiction to modify the judgment, it was error to do so. We find no error.

The facts relevant to this appeal are undisputed. The marriage of the parties was dissolved on July 16, 1976. Before the dissolution was granted, the defendant husband and the plaintiff wife had entered into a stipulation which provided for division of property, periodic and lump sum alimony and custody, visitation, care and education of the parties' three minor children. Included in the stipulation was the following provision: "In accordance with Sec. 46-54 of the Connecticut General Statutes [now General Statutes § 46b-86(a) ], all of the provisions of this agreement except for the visitation provisions are not subject to modification or change by any court at any future date. The parties entered into this agreement with the understanding that all of the provisions of this agreement, except for the visitation provisions, shall preclude their being modified, altered, amplified, amended, cancelled, or terminated." This provision was included, essentially verbatim, in paragraph seven of the judgment of dissolution, which further provided in paragraph eight that "[t]he Stipulation entered into between the parties ... is hereby incorporated by reference and made a part of the court file." See General Statutes § 46b-66.

At the time of the dissolution, the plaintiff and the defendant were each represented by counsel, but no counsel was requested or appointed to represent the parties' children, who were then ages six, four and almost two. On February 10, 1982, the plaintiff mother, who has had custody of the children since the divorce, moved that counsel be appointed to represent the minor children, which motion was granted by the court over the defendant's objection. The children's counsel filed a motion on September 3, 1982, requesting the court to "correct" the judgment of dissolution "by deleting from said judgment the provision precluding modification of custody and support." This motion was supported by the plaintiff and opposed by the defendant.

A hearing was held on the motion, at which counsel for both parties and the minor children argued before the same judge that entered the judgment of dissolution. On April 20, 1983, the court granted the children's motion to correct "by opening the judgment and deleting therefrom the provision precluding modification of custody and support," from which decision the defendant appeals.

The defendant argues that the 1976 judgment of marital dissolution "is res judicata as to the issue of whether or not support can be modified...." and that the trial court thus lacked jurisdiction to open the judgment and alter its terms. He maintains that the provision precluding judicial modification, included in the parties' stipulation and the trial court's decree, and General Statutes § 46b-86(a) (expressly referred to in that provision as former § 46-54), should have prevented the court from deleting the provision to permit modification of the terms of child support as set forth in the stipulation and the judgment. We disagree.

General Statutes § 46b-56(a) provides that in an action for dissolution of marriage, the superior court "may at any time make or modify any proper order regarding the education and support of the [minor] children...." We have interpreted this statutory language to confer continuing jurisdiction on the court to modify child support orders entered incident to a judgment of marital dissolution. "[T]he order to pay child support in a divorce judgment is not a final adjudication of the rights and duties of the parent and the minor child. The court has continuing jurisdiction to modify such an order." Sillman v. Sillman, 168 Conn. 144, 149, 358 A.2d 150 (1975); see Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691 (1973). The "rights and duties" referred to in Sillman, supra, are set forth in General Statutes § 46b-84(a) as follows: "Upon or subsequent to the ... dissolution of any marriage or the entry of a decree of ... divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance." This statutory provision, by imposing a duty on divorced parents to support the minor children of their marriage, creates a corresponding right in the children to such support.

Although child support orders rendered pursuant to General Statutes § 46b-56 are made and enforced "as incidents to divorce decrees"; Kennedy v. Kennedy, 177 Conn. 47, 50, 411 A.2d 25 (1979); the minor children's right to parental support has an independent character, separate and apart from the terms of the support obligations as set out in the judgment of dissolution. "A divorce decree for support of children by the father does not affect the rights of the children as against the father, since such a decree relates merely to the relative rights and duties of the parents toward each other." 2 Nelson, Divorce & Annulment (2d Ed.1961) § 14.98. The independent nature of a child's right to parental support was recognized by this court long before that right was codified in our statutes. In Burke v. Burke, 137 Conn. 74, 79, 75 A.2d 42 (1950), we held that an agreement concerning child support executed between a separating husband and wife did not afford a defense against the right of action by the couple's two minor children against their father for additional support. "[N]o such contract by a father can restrict or preclude the power of the court to decree what he shall pay for the support of a dependent minor child. A husband and wife cannot make a contract with each other regarding the maintenance or custody of their child which the court is compelled to enforce, nor can the husband relieve himself of his primary liability to maintain his child by entering into a contract with someone else to do so. The welfare of the child is the primary consideration. The court 'may recognize the contract, but such contract will not be enforced longer than it appears to be for the best interests of the child, and parents entering into such a contract are presumed to do so in contemplation of their obligations under the law and the rights of the child.' " (Citations omitted.) Id., 80; see Nelson, supra, §§ 14.77 and 15.58.

General Statutes § 46b-86(a), upon which the defendant chiefly relies, provides in pertinent part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support ... may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party." The defendant claims that the 1976 divorce decree did in fact preclude any future judicial modification of child support by providing, "[i]n accordance with Sec. 46-54 [now § 46b-86(a) ] of the Connecticut General Statutes, [that] all of the provisions of the Stipulation entered into by the parties dated July 15, 1976, except for the visitation provisions, are not subject to modification or change by any court at any future date." While he concedes that General Statutes § 46b-86(a) "does not allow a judgment to prevent modification of a final order for custody" and that "[t]o the extent that the stipulation and decree in the instant case attempt to do so ... it is [sic] probably ineffective," he asserts that "the Stipulation and the Judgment clearly show that the intent of the parties was to preclude modification by the Court of the support order."

We conclude that neither the general language of General Statutes § 46b-86(a), permitting the court to modify support "[u]nless and to the extent that the decree precludes modification," nor the decree's broadly phrased nonmodifiability provision, was effective to restrict permanently the court's power to modify the terms of child support under the circumstances of this case.

The 1976 divorce decree was a stipulated judgment. "Such a judgment is not a judicial determination of any litigated right.... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.... The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon the agreement, the court has entered judgment conforming to the terms of the agreement." (Citations omitted.) Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). "We have indicated on several occasions that settlement agreements incorporated into dissolution judgments should be interpreted consistently with accepted contract principles." Marsico v. Marsico, 195 Conn. 491, 493, ...