Officially released January 22, 2019.
Kirwan v. Kirwan, 187 Conn. App. 375 (2019) (Kirwan #2) (private school; retaining jurisdiction over property)
In short: (1) where the children were already attending private school prior to Judgment, that school was the status quo and no agreement was necessary to enforce the related financial orders as to the tuition; (2) the trial court may retain jurisdiction, by agreement, to address issues of property (and liability) distribution, post-judgment (use with caution absent further case law).
This is the same underlying matter as the prior Kirwan decision. See above for the initial factual background.
In the post-judgment evidentiary hearing on child support issues, the trial court ordered the parties to make decisions regarding the children’s private middle school education consistent with their parenting plan. It further ordered that the parties divide such costs 75% to Husband and 25% to Wife. The parties’ twin daughters had been enrolled in their private middle school for the 2014-2015 school year, prior to the dissolution of marriage and parenting plan. The parenting plan required that the parties agree on major decisions regarding education.
Wife filed a post-judgment motions for order requesting payment for three school years, including the school year that began prior to the October 23, 2015 date of Judgment. The trial court entered orders that Husband pay 75% for all three requested school years. The trial court later articulated that, as to the portion of the school year that predated the judgment, the basis for the order was that such tuition was a debt subject to allocation by the trial court. Husband was found in contempt for failure to abide by the orders of payment as to all three years in full and ordered to pay counsel fees incurred in the contempt.
Husband appealed the orders of payment and the finding of contempt. The Appellate Court distilled Husband’s claims to three issues and addressed each in turn.
Husband first claimed that he was not obligated to pay his 75% share because Wife did not consult him and reach agreement as to private school, arguing that such was required under the parenting plan. He further argued that the trial court had no authority to enter orders as to private school tuition as it was not reserved to the trial court explicitly in the arbitration agreement and award. The Appellate Court determined that the private school tuition had been treated by both parties as part of the financial issues to be addressed by the trial court. It further held that the trial court did not abuse its discretion in determining that, since the private school in question was already the status quo prior to dissolution, it was not a “decision” to be made under the parenting plan.
Husband second claims the trial court erred in ordering him to pay the portion of tuition covering schooling prior to the date of judgment. The trial court had justified that portion of the order as a division of marital debt. The Appellate Court held that, since the parties had agreed to address issues of support in a post-judgment evidentiary hearing, the trial court did not abuse its discretion by dividing debts related to that issue post-judgment. The Appellate Court justified this holding based on Reinke v. Sing, 328 Conn. 376, 393, 179 A.3d 769 (2018) which held that property settlements could be modified, post-judgment, by agreement.
Husband’s third claim is that the court erred in finding him in contempt. The Appellate Court applied de novo review to the question of law as to whether the order was sufficiently clear and unambiguous as to support a finding of contempt and held that the orders were sufficiently clear. The Appellate Court held that the factual findings underpinning the willful violation were not clearly erroneous.