Mettler v. Mettler , 165 Conn. App. 829 ( 2016 )

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ELIZABETH METTLER v. KIRSTEN METTLER
(AC 37844)
Lavine, Beach and Mullins, Js.
Submitted on briefs March 7—officially released May 31, 2016
(Appeal from Superior Court, judicial district of New
Haven, Gould, J.)
David N. Rubin, filed a brief for the appellant
(plaintiff).
Susan E. Nugent, filed a brief for the appellee
(defendant).
Opinion
LAVINE, J. The plaintiff, Elizabeth Mettler, appeals
from the judgment of the trial court finding her in con-
tempt for wilfully failing to pay the defendant, Kirsten
Mettler, one half of certain of their child’s extracurricu-
lar activity expenses, pursuant to a postdissolution
agreement that the parties had entered into and that
was approved by the court. On appeal, the plaintiff
claims that the trial court erred by (1) holding her in
civil contempt based on an ambiguous court order, (2)
failing to admit extrinsic evidence regarding the intent
of the parties with respect to the agreement, and (3)
ordering the plaintiff to pay a clearly erroneous amount
of extracurricular activity fees.1 We conclude that the
agreement was ambiguous, and, thus, we reverse the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The parties were married on April
1, 2000. They had one child, who was born on February
5, 2001. On April 22, 2009, the parties’ marriage was
dissolved after a lengthy and hotly contested dissolution
trial. The court initially ordered the child into the cus-
tody of the Commissioner of Children and Families.
The court ordered that after the child’s reunification
with one or both parents, the plaintiff and defendant
would have joint legal custody of the child. On June
11, 2009, the court granted the parties joint legal and
physical custody. The order stated that the parties
would not make any unilateral decisions regarding the
child’s extracurricular activities, including in which
summer activities she would participate.
On June 10, 2010, the court awarded the defendant
sole custody of the child. The defendant has had sole
legal and physical custody of the child since that date.
On July 26, 2011, the parties entered into an agreement
regarding ongoing financial issues.2 The guardian ad
litem for the child approved the agreement on behalf
of her ward, and the court entered the agreement as an
order of the court. The parties agreed that the plaintiff
would pay $236 per week in child support. In addition
to their agreement on the child support payments, the
parties agreed that they would share additional
expenses for their child’s extracurricular activities. The
relevant provision stated: ‘‘Effective August 1, 2011,
the parties shall share equally the child’s agreed upon
activity expenses concerning swimming, guitar, tennis
and summer camps.’’
On June 6, 2014, the defendant filed a motion for
contempt alleging that the plaintiff had failed to comply
with the July 26, 2011 court-approved agreement
because she had not paid the defendant for any of the
expenses related to the child’s swimming, guitar, tennis,
and summer camps incurred since August 1, 2011. On
January 20, 2015, the court held a hearing on the motion
during which the plaintiff, the defendant, and the guard-
ian ad litem for the child,3 Attorney Anne Epstein, testi-
fied. The plaintiff attempted to call Attorney Charles
Willinger, who previously had represented her and par-
ticipated in the drafting of the agreement, as a witness,
and the defendant objected. The court sustained the
defendant’s objection on the ground that Willinger’s
testimony would constitute extrinsic evidence, and it
did not allow him to testify. The court stated that it
would not allow Willinger to testify because the mean-
ing of the agreement was to be determined from the
plain language of the agreement and extrinsic evidence
was not necessary.
The court issued a memorandum of decision on
March 12, 2015, granting in part the defendant’s motion
for contempt. See footnote 4 of this opinion. The court
found that the plaintiff intentionally and wilfully refused
and neglected to pay the defendant the portion she
owed for the child’s swimming, guitar, tennis, and sum-
mer camp expenses from August 1, 2011 to the date of
the hearing. The court concluded that the defendant
continuously had provided the plaintiff with notice of
the expenses and that the plaintiff at all times was
aware of the expenses. The court found that the plaintiff
owed an arrearage of $17,441.45 and, on the basis of
its review of her financial affidavit, that the plaintiff had
the ability to pay the arrearage. It ordered the plaintiff to
pay the arrearage in three payments to purge the
contempt.
The court concluded that the language of the
agreement was clear and unambiguous. It stated that
‘‘ ‘agreed upon activity expense’ can only be interpreted
as already agreed upon. Webster’s Dictionary 5th Edi-
tion defines ‘agree’ as to have the same opinion and is
‘often followed by on or upon. The agreement does not
read ‘agree’ upon, implying that they must first agree.
Instead, it reads ‘agreed upon activity expense[s],’
which implies that the activity was agreed upon and
the agreement addressed the expenses associated or
‘concerning’ particular activities—swimming, guitar,
tennis, and summer camps.’’ Furthermore, the court
found that the evidence at the hearing showed that the
specified activities were agreed upon by the parties
when they executed the July 26, 2011 agreement. The
court noted that both parties acknowledged that the
child had been involved in the activities at issue both
prior to and subsequent to the July 26, 2011 agreement.
The plaintiff filed a motion to reargue, which the
court denied on April 6, 2015. The plaintiff subsequently
filed a motion for articulation on May 4, 2015. On May
29, 2015, the court issued its articulation, iterating that
it had found that the ‘‘parties had already agreed upon
the subject activities, the parties’ prior agreement and
subsequent court orders containing the agreement
[were] clear. There was no evidence that either party
had withdrawn that prior agreement, or had filed, and
had been granted, a motion to modify that prior
agreement.’’ The court also noted that it had found that
the expenses concerning the child’s participation in
swimming, guitar, tennis, and summer camps were rea-
sonable. This appeal followed.4
The plaintiff claims that the trial court abused its
discretion by finding her in contempt because the court
order that she was found to have violated was ambigu-
ous. The plaintiff argues that the provision in the
agreement stating that ‘‘the parties shall share equally
the child’s agreed upon activity expenses concerning
swimming, guitar, tennis and summer camps’’ is ambig-
uous because it can be interpreted to mean that she
did not incur the obligation to pay for her child’s partici-
pation in the activities unless the defendant consulted
with her and obtained her consent about the cost of
each activity before the child was enrolled. She further
argues that the trial court’s conclusion that the language
of the agreement was clear and unambiguous renders
the words ‘‘agreed upon’’ superfluous in violation of
the law of contract interpretation that ‘‘militates against
interpreting a contract in a way that renders the provi-
sion superfluous.’’ We agree that the language at issue
is ambiguous.
The following standard of review and legal principles
are relevant to this claim. ‘‘First, we must resolve the
threshold question of whether the underlying order con-
stituted a court order that was sufficiently clear and
unambiguous so as to support a judgment of contempt.
. . . This is a legal inquiry subject to de novo review.
. . . Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.
. . . A finding of contempt is a question of fact, and
our standard of review is to determine whether the
court abused its discretion in [finding] that the actions
or inactions of the [party] were in contempt of a court
order. . . . We review the court’s factual findings in
the context of a motion for contempt to determine
whether they are clearly erroneous. . . . A factual find-
ing is clearly erroneous when it is not supported by
any evidence in the record or when there is evidence
to support it, but the reviewing court is left with the
definite and firm conviction that a mistake has been
made. . . . The trial court’s findings are binding upon
this court unless they are clearly erroneous in light of
the evidence and the pleadings in the record as a whole.
. . . We cannot retry the facts or pass on the credibility
of the witnesses.’’ (Citation omitted; internal quotation
marks omitted.) Mekrut v. Suits, 147 Conn. App. 794,
799, 84 A.3d 466 (2014).
‘‘In domestic relations cases, [a] judgment rendered
in accordance with . . . a stipulation of the parties is
to be regarded and construed as a contract.’’ (Internal
quotation marks omitted.) Lisko v. Lisko, 158 Conn.
App 734, 738–39, 121 A.3d 722 (2015). Accordingly, our
resolution of the plaintiff’s claim is guided by the gen-
eral principles governing the construction of contracts.
‘‘It is well established that [a] contract must be con-
strued to effectuate the intent of the parties, which is
determined from the language used interpreted in the
light of the situation of the parties and the circum-
stances connected with the transaction. . . . [T]he
intent of the parties is to be ascertained by a fair and
reasonable construction of the written words and . . .
the language used must be accorded its common, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the contract.
. . . Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’’ (Internal quotation marks
omitted.) Celini v. Celini, 115 Conn. App. 371, 377, 973
A.2d 664 (2009). ‘‘Contract language is unambiguous
when it has a definite and precise meaning . . . con-
cerning which there is no reasonable basis for a differ-
ence of opinion . . . . In contrast, an agreement is
ambiguous when its language is reasonably susceptible
of more than one interpretation. . . . Nevertheless, the
mere fact that the parties advance different interpreta-
tions of the language in question does not necessitate
a conclusion that the language is ambiguous.’’ (Citations
omitted; internal quotation marks omitted.) Remillard
v. Remillard, 297 Conn. 345, 355, 999 A.2d 713 (2010).
On the basis of our review of the record, we conclude
that the plain language of the subject provision is ambig-
uous because it is reasonably susceptible to more than
one interpretation. There is the interpretation from the
trial court’s memorandum of decision that the past
tense ‘‘agreed upon’’ refers to ‘‘activity,’’ and the phrase
‘‘concerning swimming, guitar, tennis and summer
camps’’ defines what the ‘‘agreed upon’’ activities are.
Under this interpretation, the provision means that the
parties had previously agreed that their child would
participate in swimming, guitar, tennis, and summer
camps, and they would each pay one half of the
expenses for those activities.
The plaintiff proposes that the provision can also be
read to mean that the defendant was required to seek
her prior approval of the expenses for the listed activi-
ties before she incurred the obligation to pay for them.
She proposes that because the four activities that the
child would participate in and for which the parties
would share expenses are explicitly mentioned in the
agreement, the words ‘‘agreed upon activity’’ are all
adjectives modifying ‘‘expenses.’’ Under this interpreta-
tion, the expenses would have to be agreed upon. There
is no other language in the agreement that demonstrates
that the parties had agreed on a specific amount at the
time the court approved the agreement. The plaintiff
thus argues that the parties had to agree on the expenses
for the listed activities prior to her incurring the obliga-
tion to pay one half of the expenses. This interpretation
of the plain language of the provision is also reasonable.
We understand that in highly contentious family
cases, particularly those involving children, the trial
court may seek to sever the Gordian knot created by
parents who feud over each and every issue, no matter
how large or small. Sympathetic though we may be with
the desire of a trial judge to resolve contentious issues,
we are constrained in this case to determine if the
language at issue is ambiguous. We conclude that it is
and, accordingly, reverse the judgment of contempt and
remand the case for further proceedings.5
Because we conclude that the subject language is
ambiguous and the judgment of contempt must be
reversed, we need not address the plaintiff’s other
claims that the court erred in denying her the opportu-
nity to present extrinsic evidence and erred in its calcu-
lation of the amount she owed for the activity expenses.
Because the language is ambiguous, the parties will
have the opportunity to present extrinsic evidence
regarding their intent at the hearing on remand. See,
e.g., Cruz v. Visual Perceptions, LLC, 311 Conn. 93,
106, 84 A.3d 828 (2014).
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
The plaintiff raises four additional claims on appeal. Specifically, she
claims that the trial court erred in failing to determine the intention of
the parties regarding the agreement, concluding that the language of the
agreement was clear and unambiguous, ordering her to pay for activities
to which she did not consent, and denying her motion to reargue requesting
that her former attorney be allowed to testify and present extrinsic evidence
regarding the intent of the parties. These claims are variations of the three
claims set forth in this opinion and are resolved by our analysis of those
claims.
2
The litigation between the parties has been contentious. At the time of
the agreement, there were more than 600 entries in the court file.
3
Although the defendant has sole legal and physical custody of the child,
the guardian ad litem testified at the hearing that she remained involved to
help facilitate contact between the plaintiff and the child.
4
We note that the defendant’s motion for contempt included a claim that
the plaintiff failed to pay her share of medical expenses pursuant to an
additional section of the agreement. The court did not address this claim
in finding the plaintiff in contempt for failing to pay the activity expenses.
Generally, a ruling that does not resolve all of the issues raised in a motion
for contempt is not an appealable final judgment. See Bucy v. Bucy, 19
Conn. App. 5, 7–8, 560 A.2d 483 (1989). Bucy, however, is not applicable to
cases in which a finding of contempt is accompanied by coercive action
ordered by the court. See Khan v. Hilyer, 306 Conn. 205, 215, 49 A.3d 996for medical expenses, it has required the plaintiff to begin making arrearage
payments for the activity expenses pursuant to a schedule established by
the court. Our Supreme Court has held that ‘‘a civil contempt order requiring
the contemnor to incur a cost or take a specific action . . . satisfies the
second prong of [State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983)]
and, therefore, constitutes an appealable final judgment.’’ Id., 217.
5
The defendant argues that because he has sole custody of the child
and thus has decision-making authority over which activities the child will
participate in, he had no obligation to consult with the plaintiff prior to
enrolling the child in the listed activities. The defendant as the parent with
sole legal custody clearly has the ultimate authority to make decisions
regarding the welfare of the child, including which activities the child partici-
pates in. This rule does not, however, resolve the ambiguity of whether he
was required to consult with the plaintiff regarding the expenses prior to
enrolling the child in the listed activities for the plaintiff to incur the obliga-
tion to pay for one half of the expenses.