Hunter v. Hunter

• Decision Date: 17 April 1979
• Citation: 177 Conn. 327,416 A.2d 1201
• Court: Connecticut Supreme Court
• Parties: Lowell S. HUNTER v. Margaret B. HUNTER.

Page 1201

416 A.2d 1201

177 Conn. 327

Lowell S. HUNTER v. Margaret B. HUNTER.

Supreme Court of Connecticut.

Argued Jan. 9, 1979.

Decided April 17, 1979.

John W. Hogan, Jr., New Haven, for appellant (defendant).

Bruce Louden, Hartford, with whom, on the brief, was Elizabeth B. Leete, Hartford, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and PARSKEY, JJ.

COTTER, Chief Justice.

This is an appeal by the defendant Margaret B. Hunter from the denial of a motion requesting that the plaintiff husband be adjudged in contempt for failure to comply with an order to support, maintain and educate Victoria S. Hunter, daughter of the parties, contained in a judgment of divorce rendered by the Superior Court on May 16, 1969. Portions of a separation agreement, ¹ designated in the judgment as "the essential terms and conditions of the agreement," were incorporated in that judgment. The judgment of divorce included the following relevant provisions: "(T)he plaintiff shall provide support for said minor child, including . . . education, as follows: . . . The plaintiff shall pay the defendant for support of said minor child the sum of $400 per month plus 5% of the excess of the gross receipts of his medical practice over $55,000 per year, until such child shall die, marry, or attain the age of twenty-one, whichever shall first occur"; and he "shall pay . . . medical, dental, surgical and hospital charges for said child until such child dies, marries, or attains the age of twenty-one, whichever later occurs." Another condition in the judgment also provided that the father "shall pay all of the child's college bills, including room, board, tuition, and incidental fees and expenses."

The daughter, the only child of the parties, became eighteen years of age on March 24, 1977, and the plaintiff discontinued support payments as of April 1, 1977, but voluntarily continued to pay her college tuition, room and board bill for the first semester of the 1977-78 college year.

In her appeal, the defendant claims the trial court erred in limiting the plaintiff's obligation under the 1969 judgment to support, maintain and educate his daughter until she reached the age of eighteen; in deciding that General Statutes § 1-1d ² so affected § 46-49 as to terminate the defendant's standing to enforce the provisions of the judgment to support, maintain and educate Victoria Hunter after she reached the age of eighteen on March 24, 1977; and in concluding that Public Acts 1977, No. 77-488, hereinafter referred to as Public Act No. 77-488, amending § 46-49 of the General Statutes, does not apply retroactively to "written agreements concerning education, maintenance and support of children incorporated" into a judgment or orders entered prior to October 1, 1977.

We recently held in Kennedy v. Kennedy, 177 Conn. 47, 52, 411 A.2d 25, "that parties to an agreement relating to support and education of children cannot impose jurisdiction on the court beyond that granted by the statutes." Hence, in spite of incorporation of portions of the parties' agreement into the judgment, the trial court was not in error in its interpretation of the effect of § 1-1d on § 46-49, since the Superior Court was without jurisdiction to decide to the contrary, absent statutory authority giving it power to act in orders for support, care, maintenance and education in cases other than those of minor children.

Public Act No. 77-488, effective October 1, 1977, amended § 46-49 of the General Statutes by adding the following sentence, presently codified in what is now General Statutes § 46b-66: "If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d." The defendant claims that this 1977 amendment, now codified in § 46b-66, should be applied retroactively to the 1969 judgment. The amendment became effective some six months after Victoria Hunter became eighteen, and more than eight years after the judgment was rendered. Generally, a statute effecting substantial changes in the law or an amendatory act which causes changes in existing statutes is not to be given a retroactive effect unless it clearly and unequivocally appears that such was the legislative intent; and even if the amending statute is a procedural statute, which ordinarily will be applied retroactively without legislative imperative to the contrary, it will not be so applied if considerations of good sense and justice dictate that it will not be so construed. American Masons' Supply Co. v. F. W. Brown Co., 174 Conn. 219, 222-25, 384 A.2d 378; Carvette v. Marion Power Shovel Co., 157 Conn. 92, 96, 249 A.2d 58; 1A Sutherland, Statutory Construction (4th Ed.) § 22.36. Whether the amendatory act was to operate retroactively was not discussed at the time of its passage. ³

In Kennedy v. Kennedy, supra, wherein the enactment of Public Act No. 77-488 was not raised or treated as an issue by the parties, we held that the jurisdiction of the court to act in orders for support, care, maintenance and education of minor children required the grant of statutory authority from the legislature.

The enactment of Public Act No. 77-488 brought about changes in substantive rights of parties to a cause of action for dissolution of marriage involving orders concerning children, and established a jurisdictional ground, formerly absent, under which the Superior Court may act where there is a written agreement providing for the care, education, maintenance or support of a child beyond the age of eighteen. The effect of Public Act No. 77-488 upon the liability of the supporting parent in such a case is not inconsequential. Under the terms of the act, the jurisdictional authority of the court has been extended so as to allow for the enforcement, through the grave powers of contempt, of an agreement to support a child beyond the age of majority. "The presumption is that statutes affecting substantive rights are intended to operate prospectively, and to furnish a rule for future cases only, unless they contain language unequivocally and certainly embracing past transactions. (Citations omitted.) Legislation which . . . increases statutory liability has generally been held to be substantive in nature." (Emphasis added.) Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174, 176. Moreover, a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application. Sherry H. v. Probate Court, 177 Conn. 93, 100, 411 A.2d 931. Thus, the 1977 amendment to § 46-49 now codified as § 46b-66 must be construed to operate prospectively. American Masons' Supply Co. v. F. W. Brown Co., supra, 174 Conn. 222-25, 384 A.2d 378.

There is no error.

In this opinion LOISELLE, PETERS and PARSKEY, JJ., concurred.

BOGDANSKI, Associate Justice (dissenting).

I cannot agree that § 46b-66 of the General Statutes creates any new substantive rights or that this statute is limited to prospective application only.

Section 46b-66 merely provides that a separation agreement which is in...