Scott v. Scott

• Decision Date: 06 September 2022
• Docket Number: AC 44304
• Citation: 215 Conn.App. 24,282 A.3d 470
• Parties: Peter J. SCOTT v. Kyu SCOTT
• Court: Connecticut Court of Appeals

215 Conn.App. 24

282 A.3d 470

Peter J. SCOTT

v.Kyu SCOTT

AC 44304

Appellate Court of Connecticut.

Argued January 13, 2022

Officially released September 6, 2022

Samuel V. Schoonmaker IV, for the appellant (defendant).

Gary I. Cohen, Stamford, for the appellee (plaintiff).

Prescott, Elgo and Suarez, Js.

SUAREZ, J.

This appeal stems from postdissolution proceedings in which the defendant, Kyu Scott, moved that the plaintiff, Peter J. Scott, be found in contempt by virtue of his breach of several provisions of the separation agreement (agreement) that was entered into by the parties and incorporated into the judgment dissolving their marriage. On appeal, the defendant claims that the court improperly (1) denied her motion for contempt, (2) rewrote the agreement and retroactively modified a child support order, (3) failed to find an arrearage and enter orders necessary to preserve the integrity of the agreement, (4) determined that the defendant was not entitled to reimbursement for the cost of an out-of-network oral surgeon, and (5) ordered the defendant to pay attorney's fees to the plaintiff. We affirm the judgment of the trial court.

The following facts, as found by the court or as undisputed in the record, and procedural history are relevant to this appeal. The marriage of the plaintiff and the defendant was dissolved on March 4, 2015. Prior to the dissolution, the plaintiff and the defendant entered into the agreement, which was approved by the court and incorporated by reference into the dissolution decree. The agreement provides for the joint legal and physical custody of the parties’ two children.

The agreement also included an award of unallocated alimony and child support. Specifically, article 3.1 requires the plaintiff, beginning on January 1, 2015, to pay to the defendant a percentage based "unallocated alimony and child support until the death of either party, the [defendant's] remarriage, prior to the minor children's high school graduation or the completion of four ... years of high school, or her cohabitation as defined in ... General Statutes § 46b-86 (b), or for a non-modifiable term of seven ... years ...." "Commencing the first day of September following the minor children's high school graduation or the completion of four ... years of high school," article 3.2 requires the plaintiff to pay unallocated alimony and child support at a lower percentage based rate. The agreement provides that the unallocated alimony and child support payments terminate at the end of year seven on December 31, 2022, if not sooner for one of the specified reasons.

Article V, which is titled "Pre-College Children's Expenses," provides for the payment of the children's expenses while they attend boarding school. Article 5.1¹ requires the plaintiff to pay 60 percent and the defendant to pay 40 percent of the unreimbursed or uninsured medical and dental expenses of the children. Article 5.2² requires the plaintiff to pay 60 percent and the defendant to pay 40 percent of the cost of boarding or private school. Article 5.3³ requires the plaintiff to pay 60 percent and the defendant to pay 40 percent of the children's "[e]xtracurricular, [o]rganized [a]ctivities and [o]ther [e]xpenses ...." Articles 5.1, 5.2 and 5.3 each provide that the plaintiff must pay 100 percent of the children's expenses "[i]n year five" if the children are still attending boarding school. Article 5.4⁴ requires the plaintiff to reimburse the defendant for article 5.3 expenses that she pays within one month of the defendant's request for payment.

Article 3.5⁵ provides that if the alimony support obligation terminates, "then the parties shall determine the amount of child support to be paid by the [plaintiff] to the [defendant] retroactive to the date alimony ended." The defendant remarried on May 4, 2018. At that time, the alimony portion of the award terminated, and the plaintiff made no further alimony payments to the defendant. Thereafter, despite the fact that article 3.5 of the agreement requires the plaintiff and the defendant to "determine the amount of child support to be paid by the [plaintiff] to the [defendant] retroactive to the date alimony ended," neither the plaintiff nor the defendant took any steps to have the court determine an appropriate child support order pursuant to General Statutes §§ 46b-84⁶ and 46b-86.⁷

On June 19, 2018, the defendant filed a motion for contempt, alleging that the plaintiff was not complying with several financial orders contained in the agreement. Specifically, the defendant claimed that the plaintiff "wilfully and deliberately failed and refused to comply with the court's order concerning his agreement to pay for the children's expenses, including unreimbursed medical and dental expenses, boarding or private school, college coach, car insurance, extracurricular, organized activities and other expenses." In her motion, the defendant asked the court to find the plaintiff in contempt, enter an order requiring the plaintiff to comply with the portions of the agreement regarding the children's expenses, and award her attorney's fees. In response, the plaintiff filed a motion for attorney's fees asking that he "be awarded ... reasonable counsel fees and costs incurred in defending against the baseless claim of contempt, pursuant to ... General Statutes [§] 46b-87."

The court conducted an evidentiary hearing on the motion on December 4 and 6, 2019. On February 4, 2020, the court issued a memorandum of decision on the defendant's motion for contempt. The court began by noting that the "first task of the court is to determine if the order on which the claim is based is clear and unambiguous. In this matter, during final argument, counsel for the [defendant] observed that the agreement itself is, ‘hardly a road map of clarity.’ The court agrees. The initial confusion stems from the meaning of ‘those three little words,’ to wit: ‘In year five.’ They or a variant of them appear in both articles III and V of the agreement.

"Under article 3.5 of the agreement, the parties were obligated to calculate the appropriate amount of child support retroactive to the date that the alimony ended, and they have not done so as of the date of the hearing. On the other hand, what they have done is come to an informal arrangement or, more accurately, a large misunderstanding regarding the scope of article 5.3, whereby each party makes general expenditures on behalf of the children, tallies them all up, and sends the sum total to the other party for a monetary adjustment in favor of one or the other. The parties agreed by stipulation ... in January, 2018, that their accounts were square as of the end of 2017.

"That informal arrangement notwithstanding, the biggest problem with the arrangement is that it is not a clear and unambiguous order of the court, and, hence, a failure to comply is not a breach and does not result in a finding of contempt.⁸ Second, and perhaps more problematic, is the fact that the [defendant] has blurred the lines, in her claim, merging, for example, the children's snacks, allowance, haircuts, and clothing, to name just a few items that are clearly not ‘extracurricular,’ with some items that arguably fall into that category and are covered by the agreement, and, as a result, could be the subject of a motion for contempt. The tuition at Choate Rosemary Hall [boarding school] would be a good example. Last, the specific items that she has claimed, while they may be within the ‘black letter’ of the agreement, were made unilaterally, without the agreement of the [plaintiff], were either unnecessary or an unusually large expenditure (e.g., ‘college coach’) and, hence, were not made in good faith. Accordingly, the [defendant] should be fully responsible for the cost of the college coach, the car purchased for the children and the enrichment experience in Jackson, Wyoming. The [plaintiff's] liability for the dental surgery should be limited to 60 [percent] of the cost of the procedure performed by the in-network dentist or oral surgeon.⁹ " (Citation omitted; emphasis omitted; footnote in original.)

The court found that the use of the words "[i]n year five" in article V of the agreement was ambiguous. The court determined that, "[l]ooking at the plain meaning of the words, there are two logical ways to interpret what was intended to be the commencement date for the operative financial obligations set forth in the agreement, that is: (a) from and including March 4, 2015, the date of the agreement itself, or (b) retroactively from and including January 1, 2015. It is clear from a reading of article 3.1 that the [plaintiff's] alimony obligation commenced on January 1, 2015. It is also clear that the parties did not intend that there be a gap in coverage for the children's unreimbursed medical expenses as set forth in article 5.1. Accordingly, the court finds that the agreement is ambiguous as to this issue. However, looking at the agreement as a whole, the court finds that a start date of January 1, 2015, would be more consistent with the intent of the parties and more likely to carry its terms and provisions of same into effect."

On the basis of these findings, the court later concluded that, "under all the circumstances, the relevant provisions of the agreement in question are ambiguous, and the [plaintiff's] actions do not rise to the level of contempt; and that, however, notwithstanding a finding of no contempt, as to the private school expenses, the intent of the parties was to use the calendar year and not the designated school year (i.e., freshman, sophomore, etc.) as a basis for determining the respective responsibilities of the parties based upon the following considerations: (a) at the time that the clause was drafted, both children were attending public school; (b) the decision to have the children repeat [ninth] grade was mutual and arrived at after the agreement was drafted; and (c) the phrase in question is...