Scott v. Scott, 215 Conn. App. 24 (2022) (contempt; lack of good faith in seeking reimbursement; counsel fees against the party seeking contempt)
Officially released September 6, 2022
In Short:
(1) The separation agreement was ambiguous as to calendar year versus school year for division of certain costs and could not support a contempt finding.
(2) Certain reimbursements were disqualified because of lack of good faith on Wife’s part in incurring exorbitant or unnecessary expenses and others because they did not qualify under the terms of the separation agreement.
(3) The trial court did not abuse its discretion in ordering Wife, the party who was seeking contempt and who did secure a remedial order on certain expenses on her contempt motion, to pay counsel fees to Husband, where Husband was not found in contempt and Wife was found, in part, not to have acted in good faith.
The parties were divorced pursuant to separation agreement on 3/4/15. The separation agreement provided an award of unallocated alimony and child support based on a percentage of income beginning on 1/1/15, including a step-down when the elder child aged out of support, which would terminate on the earliest of seven years, death of either party, Wife’s remarriage or Wife’s cohabitation as defined by statute.
The separation agreement provided for a 60-40% division of unreimbursed medical and dental expenses, boarding school expenses and extracurricular expenses. However, that 60-40% would shift to 100% to Husband “in year five” if the children were still in boarding school. The separation agreement did not specify calendar year versus school year for this transition. The separation agreement provided that, if the alimony support obligation terminates, the parties shall determine the amount of child support retroactive to the date alimony ended.
Wife remarried on 5/4/18. Husband made no further alimony payments thereafter. Neither party took any steps to determine the appropriate amount of child support thereafter.
On 6/19/18 Wife filed a motion for contempt alleging non-compliance with several financial orders and seeking counsel fees. In response, Husband filed a motion for counsel fees pursuant to C.G.S. § 46b-87. The trial court held a two-day evidentiary hearing in 2019 and issued a memorandum of decision.
The trial court found ambiguity, particularly pertaining to the “in year five” language of the separation agreement, as to whether it pertained to a school year or calendar year. The trial court found that Wife sought payment for some properly reimbursable expenses, but that she also included non-qualified items (e.g., snacks, haircut, allowance) large expenses that were not agreed-upon (e.g., a car, a vacation to Colorado, a college coach and an out-of-network oral surgeon without justification for not using the children’s in-network provider).
The trial court found that Wife had not engaged in good faith in her requests for reimbursement. The trial court declined to find Husband in contempt and awarded Husband $14,930 in counsel fees. The trial court entered a remedial order that Husband pay in full the tuition and fees for the children’s senior year (fifth year as interpreted by the trial court) at boarding school.
Wife appealed.
Wife’s first claim on appeal was that the trial court improperly denied her motion for contempt, arguing that the relevant portions of the separation agreement were sufficiently clear and unambiguous to support a contempt finding.
The Appellate Court set forth the standard for contempt, which requires a wilful violation of a clear and unambiguous court order proven by clear and convincing evidence. Whether the underlying court order is clear and unambiguous is subject to de novo review.
The Appellate Court agreed with the trial court that the separation agreement was subject to more than one reasonable interpretation and therefore insufficiently clear and unambiguous to support a contempt finding. The separation agreement started certain obligations on January 1, counted years for the change in certain obligations, but also connected the counting of years for those obligations to years of enrollment in boarding school, creating ambiguity as to whether it intended calendar year or school year.
Wife’s second claim on appeal was that the trial court improperly rewrote the separation agreement and modified child support retroactively by failing to require Husband to pay for certain expenses, including the car purchase, college coach Colorado vacation and many low value expenses that the trial court determined not to be “extracurricular.”
The Appellate Court found no error, holding that the trial court interpreted the separation agreement and found that those expenses either did not fall under the language of the agreement or were not made in good faith. There was some ambiguity in the separation agreement as to whether the expense for car was intended to include a car itself or the expenses of maintaining a license and ancillary expenses, which the trial court interpreted in Husband’s favor.
The Appellate Court analyzed the duty of good faith and fair dealing as to items that would otherwise qualify under the separation agreement, noting that bad faith means more than mere negligence, it involves a dishonest purpose. The Appellate Court found nothing clearly erroneous here. Although “college coach” was covered under the separation agreement, the $51,500 expenditure for a private coach as extravagant and unnecessary given that the children’s school provided college counseling as part of the tuition package.
Wife’s third claim on appeal was that the trial court abused its discretion by failing to find an arrearage with respect to Husband’s obligation to pay certain of the expenses. The Appellate Court found, for the reasons above, that the trial court did not abuse its discretion in refusing to enter orders of reimbursement regarding certain expenses.
Wife’s fourth claim on appeal was that the trial court relied on clearly erroneous factual findings in denying reimbursement for the costs of the out-of-network surgeon. The separation agreement provided agreement as to non-emergency non-routine medical treatment, and the testimony revealed that Husband did not consent to the out-of-network surgeon. The trial court found that Husband arranged for the surgery to be done by an in-network surgeon but at the last-minute Wife arbitrarily changed to an out-of-network provider, claiming emergency without providing any evidence of emergency. The trial court limited Husband’s responsibility to 60% of the cost of an in-network procedure. The Appellate Court was not persuaded that the trial court made any erroneous factual findings.
Wife’s fifth and final claim on appeal was that the trial court abused its discretion by ordering her to pay counsel fees under § 46b-87, particularly in light of the fact that it also entered remedial orders requiring Husband to pay for the children’s boarding school tuition under the agreement.
The Appellate Court noted the punitive rather than compensatory nature of § 46b-87’s award of counsel fees, and that a party’s behavior may be considered. The Appellate Court reviewed this claim for abuse of discretion. It did not find any abuse of discretion, in light of Husband not being found in contempt and in light of the trial court’s factual findings regarding Wife’s lack of good faith.
There is an old saying in the law which appears applicable here: “pigs get fat and hogs get slaughtered.” Wife received an unusually harsh result from the trial court which was affirmed by the Appellate Court. It appears all this could have been avoided if she had been more reasonable in seeking reimbursement.
The judgment was affirmed.
