Scott v. Scott ( 2022 )

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PETER J. SCOTT v. KYU SCOTT
(AC 44304)
Prescott, Elgo and Suarez, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
denying her motion for contempt. The defendant had alleged that the
plaintiff wilfully refused to comply with several financial orders in the
parties’ separation agreement, which was incorporated into the dissolu-
tion judgment, by failing to reimburse her for certain expenses she
unilaterally incurred on behalf of the couple’s minor children, including,
inter alia, $5775 for dental surgery, $51,500 for the cost of a private
college coach and $9000 for an automobile, as well as the significant
cost of a twenty-two day enrichment program in Jackson, Wyoming.
The trial court concluded that the plaintiff’s actions did not rise to the
level of contempt. It determined that the separation agreement was
ambiguous as to the date on which certain of the parties’ financial
obligations were to commence and that the defendant sought reimburse-
ment for items that either were not covered by the agreement or for
which she had not obtained the plaintiff’s consent, as required under the
agreement. The court further concluded that certain of the defendant’s
expenditures were extravagant and unnecessary and that she had not
acted in good faith under the agreement. On appeal, the defendant
claimed, inter alia, that the trial court improperly rewrote the separation
agreement, thereby denying her reimbursement from the plaintiff, and
improperly awarded him attorney’s fees pursuant to the statute (§ 46b-
87) applicable to contempt proceedings. Held:
1. The trial court did not err in denying the defendant’s motion for contempt,
as the separation agreement was ambiguous regarding the date on which
the plaintiff was to commence paying the children’s tuition as well as
certain other financial obligations; although the agreement contained a
definitive commencement date for the plaintiff’s payment to the defen-
dant of unallocated alimony and child support, it did not provide a start
date for the payment of the children’s expenses, and, as there were two
reasonable interpretations of the commencement dates, those portions
of the agreement did not constitute clear and unambiguous orders of
the court.
2. The defendant’s claim that the trial court modified the separation agree-
ment’s child support order such that the plaintiff was not required to
pay for certain of the children’s expenses was unavailing, as the court’s
findings that the plaintiff was not required to reimburse the defendant
for the cost of the automobile she bought for the children, as well the
costs for the private college coach and the enrichment program, were
not clearly erroneous: although the provision of the agreement pertaining
to the car was ambiguous, the court determined, after considering all
of the evidence, that the parties did not intend the agreement to cover
the cost of an automobile but, rather, the expenses for a child to obtain
a license to drive an automobile as well as related expenses such as
fuel, maintenance, insurance or driving lessons; moreover, the court’s
finding that the defendant’s conduct did not comport with an implicit
duty of good faith was supported by the record, as the enrichment
program was more akin to a vacation for the defendant and the children
than an extracurricular activity for the children, and the expenditure
for the private college coach was extravagant and unnecessary in light
of the fact that college counseling was part of the tuition package at
the children’s boarding school; furthermore, the plain and unambiguous
meaning of the separation agreement did not obligate the plaintiff to
reimburse the defendant for the hundreds of lower monetary value
expenses she itemized that could not be considered extracurricular or
related to organized activities within the meaning of the agreement.
3. The trial court did not abuse its discretion when it did not enter orders
requiring the plaintiff to reimburse the defendant for children’s expenses
that she unilaterally incurred, the court having properly concluded that
those expenses were either not covered under the agreement or were
not made in good faith.
4. The trial court did not err in determining that the defendant was not
entitled to full reimbursement from the plaintiff for the cost of the
children’s dental procedures: contrary to the defendant’s assertion, the
court’s factual findings with respect to those procedures were not clearly
erroneous but were supported by evidence that the plaintiff arranged
for the procedure to be done by an in-network dentist and agreed to
share the cost with the defendant, as was his prerogative under the
separation agreement, but that the defendant insisted that the proce-
dures be done by an out-of-network oral surgeon because it was an
emergency; moreover, because the plaintiff did not agree to have the
procedure performed by the out-of-network dentist and the defendant
did not offer any credible evidence as to the nature of the procedure
or the necessity that it be performed quickly and by a particular oral
surgeon, she was required under the agreement to obtain the plaintiff’s
consent for the procedure; accordingly, the court properly concluded
that the defendant was entitled under the separation agreement to reim-
bursement for 60 percent of the cost of the procedures performed by
an in-network dentist or oral surgeon.
5. The trial court did not abuse its discretion in awarding the plaintiff
attorney’s fees, as § 46b-87 permits the award of such fees to the prevail-
ing party in a contempt proceeding: the plaintiff’s actions did not rise
to the level of wilful contempt, whereas the defendant did not exercise
good faith and good judgment in making arbitrary and unilateral expendi-
tures that were based on a strict reading of the separation agreement;
moreover, the court properly considered the defendant’s behavior, as
an award of attorney’s fees under § 46b-87 is punitive, rather than com-
pensatory, and, contrary to the defendant’s contention, the court’s ability
to award the plaintiff attorney’s fees was not impacted by its order that
the plaintiff reimburse her for certain tuition costs, as a trial court has
broad discretion to make a party whole, even in the absence of a finding
of contempt, as well as the authority under its equitable powers to
fashion an order designed to protect the integrity of the dissolution judg-
ment.
Argued January 13—officially released September 6, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief in accor-
dance with the parties’ separation agreement; there-
after, the court, Hon. Michael E. Shay, judge trial ref-
eree, denied the defendant’s motion for contempt,
entered certain financial orders, and awarded attorney’s
fees to the plaintiff, and the defendant appealed to this
court. Affirmed.
Samuel V. Schoonmaker IV, for the appellant (defen-
dant).
Gary I. Cohen, for the appellee (plaintiff).
Opinion
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 retroac-
tively 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 undis-
puted 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 chil-
dren’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-mod-
ifiable term of seven . . . years . . . .’’ ‘‘Commencing
the first day of September following the minor chil-
dren’s high school graduation or the completion of four
. . . years of high school,’’ article 3.2 requires the plain-
tiff to pay unallocated alimony and child support at a
lower percentage based rate. The agreement provides
that the unallocated alimony and child support pay-
ments 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 defen-
dant’s request for payment.
Article 3.55 provides that if the alimony support obli-
gation 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 defen-
dant 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 agree-
ment. Specifically, the defendant claimed that the plain-
tiff ‘‘wilfully and deliberately failed and refused to com-
ply 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 com-
ply 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 base-
less claim of contempt, pursuant to . . . General Stat-
utes [§] 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 agree-
ment.
‘‘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 adjust-
ment 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 big-
gest 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 chil-
dren’s snacks, allowance, haircuts, and clothing, to
name just a few items that are clearly not ‘extracurricu-
lar,’ 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 origi-
nal.)
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 agree-
ment, 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 con-
cluded 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 responsi-
bilities of the parties based upon the following consider-
ations: (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 repeated in the clauses related
to the children’s activities and unreimbursed medical
expenses; that the children’s senior year at Choate
Rosemary Hall is the ‘[fifth] year’ [that] was contem-
plated by the parties; and that the [plaintiff’s] obligation
is 100 [percent] thereof.’’
As to the unreimbursed medical and dental expenses,
the court made several findings of fact and conclusions,
stating that ‘‘[t]he parties do not appear to have a dis-
pute as to the application of their respective shares of
these expenses but, rather, to specific expenditures.
For instance, the [defendant] seeks 100 [percent] reim-
bursement from the [plaintiff] for a dental procedure
for the children. The [plaintiff] had made long-standing
arrangements for the procedure to be done by an in-
network dentist, and, at the last minute, the [defendant]
arbitrarily changed to an out-of-network oral surgeon,
claiming that it was an emergency. The dental surgeon’s
bill was $5775. . . . The [defendant] did not offer any
credible evidence or expert testimony as to the nature
of the procedure and much less the necessity that it be
performed quickly and by whom. Under all the circum-
stances, it would be unfair to make the [plaintiff] bear
the entire cost over and above the normal charges that
he had already made arrangements to have done.’’ (Cita-
tion omitted.)
With respect to the private school tuition, the court
made the following findings of fact and conclusions:
‘‘At the time of the dissolution, the children were both
attending Eastern Middle School, a public school in
Greenwich. A mutual decision was reached later, while
the children were still students at Greenwich High
School, to send them to Choate Rosemary Hall as board-
ing students, where they would repeat [ninth] grade. It
is important to note that the parties could have, but
did not, [specify] that this provision applied to the tradi-
tional, specific academic years (i.e., freshman, sopho-
more, etc.), as they did do in article 3.1 relating to the
termination of alimony. Rather, they used the generic
description, ‘years one through four.’ The [plaintiff’s]
contention, however, is just that. In essence, notwith-
standing the repetition of the freshman year, he claims
he has no further obligation, and would only have one,
should there be a specific [fifth] academic year.
According to the testimony of the [defendant], Choate
Rosemary Hall has no term beyond senior year. While
there is some logic to the [plaintiff’s] interpretation, the
better, more logical explanation is that the children are
currently in ‘year five’ and that his obligation under the
terms of the agreement is 100 [percent] of the tuition,
room and board at Choate Rosemary Hall.’’
The court also made several findings of fact and con-
clusions with respect to the disputed expenses paid by
the defendant on behalf of the children, specifically,
the college coach, the enrichment experience, and the
automobile. The court found that, ‘‘[i]n years one
through four, such expenditures are to be made during
their school years, 60 [percent] by the [plaintiff] and
40 [percent] by the [defendant]. However, in year five,
in the event that the children are attending boarding
school, the [plaintiff] pays 100 [percent]. The [defen-
dant] has offered to the court several exhibits outlining
her out-of-pocket expenditure on behalf of the children;
the list is very comprehensive, detailing even the small-
est, inconsequential items [such] that the court ques-
tions her good faith and perspective. In particular, she
has made arbitrary expenditures based upon a strict
reading of the agreement. As a case in point, the [defen-
dant] made a unilateral decision to use a firm called
Preminente as a college coach for the twins, and, to
that end, she has expended or committed to expend
$51,500 . . . . While the agreement specifically uses
the term ‘college coaches,’ the testimonial evidence is
clear that Choate Rosemary Hall had college counselors
on staff as part of the tuition package. The court finds
under all the circumstances that her expenditure and
commitment to pay same to be extravagant and unnec-
essary. Likewise, the [defendant] unilaterally selected
an expensive, [twenty-two] day ‘enrichment program’
at Jackson, Wyoming, through the Grand Teton National
Park Foundation that was more akin to a family vaca-
tion. Similarly, the [defendant] unilaterally purchased
a used car for a net of $9000 . . . for the children on
the strength of a patently ambiguous clause, drafted
ostensibly to cover ‘expenses for a child to obtain and
hold a license to drive an automobile.’ A parenthetical
listing, by way of example, includes ‘car insurance, cars
and related fuel and maintenance.’ Clearly, one does
not have to own or lease a car in order to obtain and
maintain a driver’s license, and a logical explanation
would be that it was intended to cover the fuel and
maintenance of a vehicle, as with other expenses
related to driving a car such as ‘car insurance’ or driving
lessons. There does not appear to be a mechanism in the
agreement to resolve such disagreements but, rather,
it relies upon the good faith and good judgment of each
of the parties, something the [defendant] has clearly
not exercised.’’ (Citations omitted.) On the basis of
these facts, the court ultimately concluded that ‘‘the
arbitrary actions of the [defendant] regarding the col-
lege coach, the dental surgery, enrichment program at
Jackson, Wyoming, and the purchase of the used car,
fall outside the realm of good faith and fair dealing.’’
Finally, with respect to the plaintiff’s claim for attor-
ney’s fees, the court ‘‘reviewed the affidavit of counsel
fees . . . dated July 18, 2019, and [found] it to be fair
and equitable under all the circumstances.’’ (Citation
omitted.) Because the court ‘‘[did] not find the [plain-
tiff’s] actions to [rise] to the level of wilful contempt,
under all the [circumstances],’’ the court concluded that
‘‘it is equitable and appropriate for the court to award
him reasonable attorney’s fees in the amount of
$14,930.’’
On the basis of the foregoing analysis, the court
denied the defendant’s motion for contempt. Notwith-
standing its denial of the defendant’s motion for con-
tempt, the court ordered that the ‘‘plaintiff . . . pay in
full any outstanding tuition and fees for the children’s
senior year at Choate Rosemary Hall and [that] he . . .
reimburse the defendant . . . for any tuition and fees
that she may have expended for their senior year.’’ The
court also ordered that the defendant pay the plaintiff’s
attorney’s fees in the amount of $14,930 on the basis
of its denial of the motion for contempt. This appeal
followed.
I
We first address the defendant’s claim that the court
improperly denied the plaintiff’s motion for contempt.
Specifically, the defendant argues that the relevant por-
tions of the agreement were sufficiently clear and unam-
biguous so as to support a finding of contempt. We
disagree.
We begin by setting forth the legal principles relevant
to this claim. ‘‘Contempt is a disobedience to the rules
and orders of a court which has power to punish for
such an offense. . . . [C]ivil contempt is committed
when a person violates an order of court which requires
that person in specific and definite language to do or
refrain from doing an act or series of acts. . . . In part
because the contempt remedy is particularly harsh . . .
such punishment should not rest upon implication or
conjecture, [and] the language [of the court order]
declaring . . . rights should be clear, or imposing bur-
dens [should be] specific and unequivocal, so that the
parties may not be misled thereby. . . . To constitute
contempt, it is not enough that a party has merely vio-
lated a court order; the violation must be wilful. . . .
It is the burden of the party seeking an order of con-
tempt to prove, by clear and convincing evidence, both
a clear and unambiguous directive to the alleged con-
temnor and the alleged contemnor’s wilful noncompli-
ance with that directive. . . . The question of whether
the underlying order is clear and unambiguous is a legal
inquiry subject to de novo review. . . . If we answer
that question affirmatively, we then review the trial
court’s determination that the violation was wilful
under the abuse of discretion standard.’’ (Citations
omitted; internal quotation marks omitted.) Puff v. Puff,
334 Conn. 341, 364–66, 222 A.3d 493 (2020).
General Statutes § 46b-66 (a) provides in relevant part
that, ‘‘[i]f the court finds the [dissolution] agreement
fair and equitable, it shall become part of the court file,
and if the agreement is in writing, it shall be incorpo-
rated by reference into the order or decree of the court.
. . .’’ In order to adjudicate the defendant’s claim that
the court erred in denying her motion for contempt,
we begin by addressing the threshold question of
whether the underlying court order, the dissolution
agreement, was ‘‘sufficiently clear and unambiguous
so as to support a judgment of contempt.’’ (Internal
quotation marks omitted.) Pressley v. Johnson, 173
Conn. App. 402, 408, 162 A.3d 751 (2017).
‘‘It is well established that a separation agreement
that has been incorporated into a dissolution decree
and its resulting judgment must be regarded as a con-
tract and construed in accordance with the general
principles governing contracts. . . . A contract is
unambiguous when its language is clear and conveys
a definite and precise intent. . . . The court will not
torture words to impart ambiguity where ordinary
meaning leaves no room for ambiguity. . . . Moreover,
the mere fact that the parties advance different interpre-
tations of the language in question does not necessitate
a conclusion that the language is ambiguous. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citation omitted; internal quo-
tation marks omitted.) Dejana v. Dejana, 176 Conn.
App. 104, 114–15, 168 A.3d 595, cert. denied, 327 Conn.
977, 174 A.3d 195 (2017).
We conclude, as did the trial court, that the agreement
was not a clear and unambiguous order because the
language of the agreement is susceptible to more than
one reasonable interpretation. Specifically, the agree-
ment is ambiguous as to the commencement date for
the financial obligations imposed by the agreement.
In order to determine whether the agreement is clear
and unambiguous, we examine the language of the
agreement. Article III, which addresses alimony and
child support, provides a definitive commencement
date for the payment of the award of unallocated ali-
mony and child support. It provides in relevant part:
‘‘Commencing on January 1, 2015, and on the first and
fifteenth days of each month thereafter, the [plaintiff]
shall pay to the [defendant], as unallocated alimony
and child support until the death of either party, the
[plaintiff’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, the following percentages of
his ‘gross annual earned income from employment’
. . . .’’
On the other hand, article V, which provides for the
payment of ‘‘[c]hildren’s [e]xpenses,’’ does not include
a start date for the commencement of the financial
obligations contained within it but, rather, indicates
the division of payment responsibilities between the
plaintiff and the defendant by referencing ‘‘years one
through four’’ and ‘‘year five . . . .’’ Article 5.1 provides
in relevant part: ‘‘In year five, and provided that the
children are attending boarding or private school, the
[plaintiff] shall pay 100 [percent] of [unreimbursed med-
ical and dental] expenses.’’ (Emphasis added.) Article
5.2 provides: ‘‘If the children, by agreement of the par-
ties, attend boarding or private school, their tuition,
room and board, years one through four, shall be paid
[60 percent] by the [plaintiff] and [40 percent] by the
[defendant]. In year five, tuition, room and board shall
be paid [100 percent] by the [plaintiff].’’ (Emphasis
added.) Finally, article 5.3 provides in relevant part: ‘‘In
year five, if the children are attending boarding school,
all of their expenses shall be paid [100 percent] by the
[plaintiff].’’ (Emphasis added.)
We agree with the court that there are two reasonable
interpretations of the commencement date for the finan-
cial obligations set forth in the agreement. To begin,
because article 3.1 clearly states that the plaintiff’s ali-
mony obligation commenced on January 1, 2015, one
logical interpretation is that all of the financial obliga-
tions set forth in the agreement also commence on
January 1, 2015. Another logical interpretation, how-
ever, is that the agreement’s financial obligations com-
mence on March 4, 2015, the date of the agreement.
This interpretation applies principally to the portions
of the agreement, including article V, that do not specify
a commencement date for the financial obligations that
they impose. Because the commencement date for the
relevant financial obligations contained within the
agreement is susceptible to more than one reasonable
interpretation, the agreement is ambiguous with respect
to this issue.
Further, the meaning of the words ‘‘years one through
four’’ and ‘‘year five’’ for the purposes of article V is
ambiguous. Article V provides for the division of the
children’s expenses while they attend boarding school.
Instead of referring to specific academic years, such
as freshman, sophomore, junior, and senior, article V
references ‘‘years one through four’’ and ‘‘year five
. . . .’’ In particular, the ambiguity stems from article
5.2, which provides that, ‘‘[i]f the children, by agreement
of the parties, attend boarding or private school, their
tuition, room and board, years one through four, shall
be paid [60 percent] by the [plaintiff] and [40 percent]
by the [defendant]. In year five, tuition, room and board
shall be paid [100 percent] by the [plaintiff].’’ The way
in which this section is written, particularly how it
refers to the payment of boarding school tuition and
room and board for ‘‘years one through four,’’ creates
ambiguity because ‘‘years one through four’’ in this con-
text reasonably could be interpreted to mean the num-
ber of years that the children have attended boarding
school. Other portions of the agreement, however, mea-
sure the years based on the number of years that have
passed since the commencement of the financial obliga-
tions imposed by the agreement. Because article V is
unclear as to whether its reference to ‘‘years one
through four’’ and ‘‘year five’’ refer to specific academic
years or years that have passed since the commence-
ment of the financial obligations contained in the agree-
ment, article V of the agreement is ambiguous.
Because we determine that the relevant portions of
the agreement were not clear and unambiguous orders
of the court, we conclude that the court did not err
when it concluded that the plaintiff was not in contempt
of the order.
II
We next address the defendant’s claim that the court
improperly rewrote the separation agreement and modi-
fied the child support order retroactively. Specifically,
the defendant argues that the ‘‘court improperly modi-
fied the . . . agreement by determining that articles
5.3 and 5.4 did not require the plaintiff to pay for [the]
children’s expenses.’’ We disagree and conclude that
the court did not modify the agreement but, rather,
properly interpreted the agreement and determined that
it did not cover several of the disputed expenses that
the defendant unilaterally incurred. These expenses
include the used car, the college coach, and the enrich-
ment experience, as well as the hundreds of low mone-
tary value expenses on the defendant’s itemized list
that cannot be characterized as ‘‘extracurricular.’’
‘‘A trial court in a dissolution action has broad equita-
ble powers under our dissolution statutes. . . . Those
powers do not, however, allow the court to rewrite a
separation agreement that has been incorporated into
the judgment of dissolution.’’ (Citation omitted.) Eckert
v. Eckert, 285 Conn. 687, 696, 941 A.2d 301 (2008).
Instead, a court must treat a ‘‘separation agreement that
has been incorporated into a dissolution decree and its
resulting judgment . . . as a contract and [construe the
agreement] in accordance with the general principles
governing contracts.’’ (Internal quotation marks omit-
ted.) Dejana v. Dejana, supra, 176 Conn. App. 114.
‘‘When construing a contract, [a court seeks] to deter-
mine the intent of the parties from the language used
interpreted in the light of the situation of the parties
and the circumstances 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, natural, and ordinary meaning and usage
where it can be sensibly applied to the subject matter
of the contract. . . . When only one interpretation of
a contract is possible, the court need not look outside
the four corners of the contract. . . . Extrinsic evi-
dence is always admissible, however, to explain an
ambiguity appearing in the instrument. . . . When the
language of a contract is ambiguous, the determination
of the parties’ intent is a question of fact. . . . When
the language is clear and unambiguous, however, the
contract must be given effect according to its terms,
and the determination of the parties’ intent is a question
of law.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Isham v. Isham, 292 Conn.
170, 180–81, 972 A.2d 228 (2009).
The defendant claims that the court improperly
rewrote the separation agreement and modified the
child support retroactively. We disagree. Instead, we
conclude that, when interpreting the agreement, the
court properly determined that several expenses
incurred by the defendant were not expenses that were
covered under the agreement either because they did
not fall under the language of the agreement or because
they were not made in good faith and, therefore, that
the plaintiff is not required to reimburse the defendant
for such expenses.
With respect to this issue, the court noted in its mem-
orandum of decision that ‘‘the [defendant] has blurred
the lines in her claim, merging, for example, the chil-
dren’s snacks, allowance, haircuts, and clothing, to
name just a few items that are clearly not ‘extracurricu-
lar,’ 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 would be a good example.
[Additionally], the specific items that she has claimed,
while they may be within the ‘black letter’ of the agree-
ment, 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 [defen-
dant] should be fully responsible for the cost of the
college coach, the car purchased for the children, and
the enrichment experience in Jackson, Wyoming.’’ We
analyze each of the disputed expenses in turn.
We first conclude that the plaintiff was not required
to reimburse the defendant for the cost of the used
automobile because it was not an expense covered by
the agreement. We begin by determining whether the
agreement was clear and unambiguous as to whether,
under article 5.3, the cost to purchase an automobile
for the children is a reimbursable expense. As we stated
previously in this opinion, whether an agreement is
clear and unambiguous is a question of law over which
our review is plenary. See, e.g., Isham v. Isham, supra,292 Conn. 181. We conclude that the contract language
at issue is ambiguous because it is reasonably suscepti-
ble to more than one interpretation. The portion of
article 5.3 on which the defendant relies in requesting
reimbursement for the cost of the used automobile pro-
vides that the agreement covers ‘‘expenses for a child
to obtain and hold a license to drive an automobile
. . . .’’ Considering the ordinary meaning of the lan-
guage in the agreement, it appears that this provision
intended to cover expenses such as automobile insur-
ance, driving lessons, other fees associated with
obtaining a driver’s license, or even costs associated
with the maintenance of an automobile. The expense
to purchase an automobile does not fall within the ordi-
nary meaning of this provision because one does not
need to own an automobile in order to obtain and hold
a license to drive an automobile. The ambiguity with
respect to this provision, however, stems from a paren-
thetical indicating that the expenses covered by article
5.3 include ‘‘car insurance, cars and related fuel and
maintenance . . . .’’ (Emphasis added.) This portion of
the agreement is ambiguous because the parenthetical
suggests that an automobile is included in the covered
expenses under article 5.3, but the language outside of
the parenthetical, within its ordinary meaning, does not
seem to encompass the purchase of an automobile.
Because ‘‘the language of [the agreement] is ambigu-
ous, the determination of the parties’ intent is a question
of fact.’’ (Internal quotation marks omitted.) Isham v.
Isham, supra, 292 Conn. 181. The court determined that
this clause was ‘‘drafted ostensibly to cover expenses
for a child to obtain and hold a license to drive an
automobile.’’ (Internal quotation marks omitted.) The
court reasoned that ‘‘one does not have to own or lease
a car in order to obtain and maintain a driver’s license,
and a logical explanation would be that [the clause]
was intended to cover the fuel and maintenance of a
vehicle, as well as other expenses related to driving a
car such as car insurance or driving lessons.’’ (Internal
quotation marks omitted.) We conclude that the court’s
finding as to the clause’s meaning, after considering all
of the evidence, including the testimony of the parties,
was not clearly erroneous. We therefore conclude that
the court properly determined that the automobile was
not an expense covered under the agreement and, there-
fore, the plaintiff was not required to reimburse the
defendant for the cost of the automobile.
We now turn to the defendant’s claims for reimburse-
ment related to the expenses that she incurred for the
college coach and the enrichment experience. Although
these expenses appear to fall within the literal meaning
of article 5.3, our resolution of these claims also requires
us to examine whether the court’s finding that the defen-
dant’s conduct did not comport with an implicit duty
of good faith and fair dealing is supported by the record.
‘‘[I]t is axiomatic that the . . . duty of good faith and
fair dealing is a covenant implied into a contract or a
contractual relationship. . . . In other words, every
contract carries an implied duty requiring that neither
party do anything that will injure the right of the other
to receive the benefits of the agreement. . . . The cove-
nant of good faith and fair dealing presupposes that the
terms and purpose of the contract are agreed upon
by the parties and that what is in dispute is a party’s
discretionary application or interpretation of a contract
term. . . . To constitute a breach of [the implied cove-
nant of good faith and fair dealing], the acts by which
a defendant allegedly impedes the plaintiff’s right to
receive benefits that he or she reasonably expected to
receive under the contract must have been taken in bad
faith. . . . Bad faith means more than mere negligence;
it involves a dishonest purpose.’’ (Citations omitted;
internal quotation marks omitted.) De La Concha of
Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424,
432–33, 849 A.2d 382 (2004).
We conclude that the court’s finding that the defen-
dant did not act in good faith under the agreement—
with respect to the expense that she unilaterally
incurred for the private college coach—was not clearly
erroneous, and, therefore, the plaintiff is not required
to reimburse the defendant for that expense. The court
noted that parties to a separation agreement ‘‘should
not take unfair advantage of contractual provisions that
are wide open or less than clear,’’ and they should
‘‘[honor] the spirit of [the] agreement . . . .’’ Although
the agreement did include ‘‘college coaches’’ as a reim-
bursable expense under article 5.3, the court deter-
mined that the defendant’s $51,500 expenditure for a
private college coach was extravagant and unnecessary,
particularly given the fact that Choate Rosemary Hall
provides college counseling as part of the tuition pack-
age. Because we have determined that there is support
in the record for the court’s finding that the defendant
did not act in good faith when she incurred this expense,
we conclude that the finding is not clearly erroneous.
We therefore conclude that the plaintiff is not required
to reimburse the defendant for this expense under the
agreement.
We also conclude that the court properly found that
the expense that the defendant incurred for the ‘‘enrich-
ment experience’’ was not made in good faith, and,
therefore, the plaintiff is not required to reimburse the
defendant for that expense under the agreement. The
court found that the enrichment program in Jackson,
Wyoming, through the Grand Teton National Park Foun-
dation was more akin to a vacation enjoyed by the
defendant and her children than an extracurricular
activity for the children. The court ultimately found
that the defendant’s unilateral decision to purchase the
enrichment experience for the children, a significant
expense, and to request the plaintiff’s reimbursement
for what appeared to be a vacation with the defendant,
was not made in good faith under the agreement. We
conclude that the court’s finding with respect to the
enrichment experience, on the basis of the evidence
before it, was not clearly erroneous. Accordingly, the
plaintiff is not required under the agreement to reim-
burse the defendant for this expense.
Finally, we conclude that, on the basis of the plain
and unambiguous meaning of the agreement, the plain-
tiff was not required to reimburse the defendant for the
litany of itemized expenses such as snacks, allowances,
haircuts, and clothing because these expenses cannot
be considered ‘‘extracurricular’’ or related to ‘‘[o]rga-
nized [a]ctivities,’’ and, therefore, they are not covered
by article 5.3 of the agreement. Pursuant to the agree-
ment, expenses covered under article 5.3 include ‘‘all
school related educational, extracurricular and social
activities; non-school related educational and extracur-
ricular [activities]; organization/team/program fees,
equipment, and team travel related expenses; all orga-
nized summer programs including transportation;
enrichment programs such as music lessons, sports les-
sons, and the like; necessary tutors; [and] pre-boarding
school and pre-college expenses, including, but not lim-
ited to, testing and preparatory classes, tutors, colleges
coaches, application fees, [and] travel expenses for pre-
application boarding school and college visits . . . .’’
The defendant, in her itemized list for reimbursement,
has outlined hundreds of expenses, merging some
expenses that fall under article 5.3 with others that
clearly do not. For example, the defendant included
in the itemized list many expenses for things such as
clothing, snacks, allowances, and haircuts, which
clearly are not expenses that can be considered ‘‘[e]xtra-
curricular . . . .’’ Having already discussed in detail
the higher monetary value items that are the subject of
the defendant’s claims for reimbursement under the
agreement, we note that it would serve no useful pur-
pose to individually address in this opinion the hun-
dreds of other, lower monetary value expenses listed
by the defendant that are also the subject of this claim.
Nonetheless, we have considered each of these
expenses and conclude for reasons similar to those
already discussed herein, that the court properly found
that the plaintiff was not obligated under the agreement
to reimburse the defendant for these expenses.
We conclude that (1) the court’s finding that the par-
ties did not intend for the agreement to cover the cost
to purchase an automobile for the children was not
clearly erroneous, and, therefore, the court properly
determined that the automobile was not an expense
covered under the agreement; (2) the court’s findings
that the defendant did not act in accordance with the
implied duty of good faith when she incurred the
expenses for the college coach and the enrichment
experience were not clearly erroneous, and, therefore,
the court properly determined that the plaintiff was not
required to reimburse the defendant for these expenses
under the agreement; and (3) on the basis of the plain
meaning of the agreement, the large number of low
monetary value expenses on the itemized list, including
clothing, snacks, allowances, and haircuts, cannot be
considered ‘‘[e]xtracurricular,’’ and, therefore, they are
not covered under the agreement. On the basis of these
conclusions, we further conclude that the court did
not rewrite the separation agreement or retroactively
modify the child support. Instead, the court properly
determined that these expenses were not covered under
the agreement, and, therefore, the plaintiff was not
required to reimburse the defendant for these expenses.
III
We next address the defendant’s claim that the court
abused its discretion by failing to find an arrearage with
respect to the plaintiff’s obligation to pay for expenses
related to the parties’ children under the agreement10
and enter orders to preserve the integrity of the agree-
ment. As we iterated in part II of this opinion, the court,
upon interpreting the agreement, properly concluded
that the agreement did not require the plaintiff to reim-
burse the defendant for several of the disputed
expenses that she incurred, and, accordingly, the court
did not err in failing to find an arrearage and enter
orders with respect to those expenses.
It is well established that, ‘‘[i]n a contempt proceed-
ing, even in the absence of a finding of contempt, a
trial court has broad discretion to make whole a party
who has suffered as a result of another party’s failure
to comply with the court order.’’ (Emphasis omitted;
internal quotation marks omitted.) Fuller v. Fuller, 119
Conn. App. 105, 115, 987 A.2d 1040, cert. denied, 296
Conn. 904, 992 A.2d 329 (2010). ‘‘Courts have in general
the power to fashion a remedy appropriate to the vindi-
cation of a prior . . . judgment. . . . Having found
noncompliance, the court, in the exercise of its equita-
ble powers, necessarily ha[s] the authority to fashion
whatever orders [are] required to protect the integrity
of [its original] judgment.’’ (Internal quotation marks
omitted.) Pressley v. Johnson, supra, 173 Conn. App.
408. ‘‘In determining whether a trial court has abused
its broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action.’’ (Internal quotation marks
omitted.) Fuller v. Fuller, supra, 115.
The court did not abuse its discretion when it did
not enter orders requiring the plaintiff to reimburse
the defendant under article 5.3 of the agreement for
particular ‘‘[c]hildren’s expenses’’ that the defendant
unilaterally incurred. For the reasons set forth in part
II of this opinion, the court properly concluded that the
expenses that the defendant unilaterally incurred for
the numerous itemized expenses, including snacks,
allowances, haircuts, and clothing, as well as the used
automobile, the college coach, and the enrichment
experience, were either not covered under article V of
the agreement or were not made in good faith. There-
fore, the court did not abuse its discretion when it did
not enter orders requiring the plaintiff to reimburse the
defendant for such expenses.11
IV
The defendant next claims that the court erred in
concluding that he was not entitled to reimbursement
for the cost of the children’s dental procedures per-
formed by an out-of-network oral surgeon. Specifically,
the defendant claims that, in denying reimbursement
for the cost of the out-of-network dental procedures,
the court relied on findings of fact that were clearly
erroneous. We disagree.
The following additional facts are relevant to this
claim. At the evidentiary hearing conducted by the court
on December 4 and 6, 2019, both the plaintiff and the
defendant testified with respect to the disputed
expenses for the children’s dental procedures. The
defendant testified that the children ‘‘needed to get their
wisdom teeth pulled. I asked [the plaintiff] to make an
appointment. He didn’t. I finally did because they had
an infection. They had an appointment in . . . April,
and a week before my appointment, [the plaintiff] told
the kids that he had an appointment for them the next
day with an in-network oral surgeon. . . . I ultimately
took them to the [out-of-network] dentist, the oral sur-
geon who [one of the children] had previously had his
teeth pulled by, and [the plaintiff] refused to make the
payment for an out-of-network oral surgeon.’’ The
defendant further testified that the expense for the oral
surgeon was incurred in April, 2018. She also testified
that she charged the plaintiff 60 percent of the total
cost of the procedures but that he paid her only $900,
and that ‘‘[h]e insisted that we use an in-network, [non-
board] certified oral surgeon.’’ When asked on cross-
examination about whether the plaintiff sent her a list
of in-network dentists to be used for the dental proce-
dure, the defendant replied, ‘‘[y]es, the night before
the appointment.’’ Further, when asked whether the
agreement stated that ‘‘each party shall obtain the agree-
ment of the other when a child requires nonemergency,
nonroutine medical treatment but such approval shall
not unreasonably be withheld,’’ the defendant indicated
that the agreement did so provide. Finally, the defen-
dant indicated during cross-examination that the plain-
tiff did not agree with her unilateral choice of an out-
of-network dentist and that the plaintiff told her that
he would be willing to share the cost to have an in-
network dentist to perform the procedure.
The plaintiff testified that the first time he learned
that the children needed oral surgery was in mid-April,
2018. The plaintiff testified that, after learning that the
children needed oral surgery: ‘‘I obtained copies of their
dental X-rays. I researched available dentists. . . . I
spoke to a dentist on the phone in Stamford, a Dr.
William Kim. I went and, in person, met with . . . Kim,
[and] showed him the X-rays . . . .’’ The plaintiff fur-
ther testified that Kim is an in-network, board certified
dentist. After obtaining information from Kim during
the initial meeting, the plaintiff testified that he sched-
uled an appointment for the children to have the neces-
sary procedure performed. The plaintiff testified that,
after he made the appointment, he ‘‘notified [the defen-
dant] of the date of the appointment and of the doctor’s
name and bio.’’ This notification occurred in the ‘‘[m]id-
dle of April.’’ The plaintiff further testified that the
defendant instead took the children to an out-of-net-
work oral surgeon of her choosing in early June. When
asked if he knew why the defendant did not meet or
confer with the in-network, board certified dentist that
the plaintiff had referred to her, the plaintiff testified
that the defendant ‘‘researched the background of the
wrong Dr. Kim.’’ The plaintiff testified that he reim-
bursed the defendant $900 for the dental procedures
because he ‘‘believed it was the reasonable payment
for the services of an in-network doctor.’’
With respect to the dental expenses, the court found
that ‘‘[t]he parties do not appear to have a dispute as
to the application of their respective shares of these
expenses but, rather, to specific expenditures. For
instance, the [defendant] seeks 100 [percent] reim-
bursement from the [plaintiff] for a dental procedure
for the children. The [plaintiff] had made long-standing
arrangements for the procedure to be done by an in-
network dentist, and, at the last minute, the [defendant]
arbitrarily changed to an out-of-network oral surgeon,
claiming that it was an emergency. The dental surgeon’s
bill was $5775. . . . The [defendant] did not offer any
credible evidence or expert testimony as to the nature
of the procedure and much less the necessity that it be
performed quickly and by whom. Under all the circum-
stances, it would be unfair to make the [plaintiff] bear
the entire cost over and above the normal charges that
he had already made arrangements to have done.’’ (Cita-
tion omitted.) The court ultimately determined that
‘‘[t]he [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.’’
The defendant claims that the court erred in conclud-
ing that she was not entitled to full reimbursement for
the cost of the dental procedures performed by the out-
of-network oral surgeon because the court made and
relied on findings of fact that were clearly erroneous
with respect to the dental procedure. In her brief, the
defendant asserts that, ‘‘[b]ased on the evidence, the
trial court found, [t]he [plaintiff] had made long-stand-
ing arrangements for the [dental] procedure to be done
by an in-network dentist, and, at the last minute, the
[defendant] arbitrarily changed to an out-of-network
oral surgeon, claiming that it was an emergency. . . .
The trial court proceeded to find that it would be unfair
for the [plaintiff] to pay the entire cost of [the] oral
surgery, above the amount he would have paid for the
in-network dentist. . . . The trial court accordingly
denied the relief sought, which was reimbursement of
$2450 under article 5.1. . . . The trial court’s denial
of the reimbursement request was based on clearly
erroneous findings of fact.’’ (Citations omitted; empha-
sis added; internal quotation marks omitted.)
Our review of this claim requires us first to determine
whether the facts as found by the court are clearly
erroneous and then to interpret the language of the
agreement. As we stated previously in this opinion, a
separation agreement that has been incorporated into
a dissolution decree and its resulting judgment are
treated as a contract and construed in accordance with
the general principles governing contracts. See, e.g.,
Dejana v. Dejana, supra, 176 Conn. App. 114. ‘‘The
standard of review for the issue of contract interpreta-
tion is well established. When . . . there is definitive
contract language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law. . . . Accordingly, our review is plenary.
. . . [W]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision; where
the factual basis of the court’s decision is challenged
we must determine whether the facts set out in the
memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings
in the whole record, those facts are clearly erroneous.’’
(Citation omitted; internal quotation marks omitted.)
Giedrimiene v. Emmanuel, 135 Conn. App. 27, 34, 40
A.3d 815, cert. denied, 305 Conn. 912, 45 A.3d 97 (2012).
‘‘A finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Martin v. Martin,
101 Conn. App. 106, 110, 920 A.2d 340 (2007).
We conclude that the findings of fact made by the
court with respect to this claim were not clearly errone-
ous. The plaintiff testified that he scheduled an appoint-
ment for the children to have their teeth extracted by
an in-network dentist. The plaintiff testified that he then
notified the defendant of the date of the appointment.
The plaintiff further testified that the defendant instead
took the children to an out-of-network oral surgeon
whom she had chosen for an appointment that occurred
after the date on which the plaintiff had scheduled the
appointment for the children’s procedures with the in-
network dentist. On the basis of the plaintiff’s testi-
mony, there was evidence in the record to support the
court’s finding that the plaintiff made arrangements for
the procedure to be done by an in-network dentist and
that, instead, the defendant insisted that the procedures
be performed by an out-of-network oral surgeon, claim-
ing that it was an emergency. Further, it is clear from
the record that the defendant did not offer any credible
evidence or expert testimony as to the nature of the
procedure or the necessity that it be performed quickly
and by a particular oral surgeon. On the basis of our
review of the entire record, we are not persuaded that
a mistake has been committed. The findings of the court
with respect to the dental procedures, therefore, are
not clearly erroneous.
Having concluded that the facts, as found by the
court, were not clearly erroneous, we next interpret
the language of the agreement to determine whether
the court erred in concluding that the defendant was not
entitled to reimbursement for the cost of the children’s
dental procedures. Article 5.1 of the agreement specifi-
cally addresses the payment of the children’s unreim-
bursed medical and dental expenses. It provides: ‘‘The
[plaintiff] shall pay [60 percent] and the [defendant]
shall pay [40 percent] of any reasonably incurred, unre-
imbursed or uninsured medical expense for the benefit
of the children. In year five, and provided that the chil-
dren are attending boarding or private school, the
[plaintiff] shall pay [100 percent] of said expenses. Each
party shall obtain the agreement of the other when
a child requires non-emergency, non-routine medical
treatment, but such approval may not unreasonably be
withheld. The parties shall account to each other and
make payments to each other in accordance with this
obligation on a quarterly basis. Both parties may submit
claims directly to the insurer, and reimbursement to
the party who advanced payment shall be made within
[ten] days after submission of proof of payment.’’ We
conclude that the court did not err when it determined
that 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.
Under the definitive language of the agreement,
‘‘[e]ach party shall obtain the agreement of the other
when a child requires non-emergency, non-routine med-
ical treatment, but such approval may not unreasonably
be withheld.’’ Because the defendant did not present
any evidence establishing that the procedure was emer-
gent in nature, article 5.1 required that she obtain the
plaintiff’s agreement for the procedure. The plaintiff did
not agree to have the children’s procedure performed
by the out-of-network dentist but, rather, indicated that
he would share the cost of the procedure performed
by an in-network dentist, as was his prerogative under
the agreement. We therefore conclude that the court
did not err when it determined that the defendant was
not entitled to reimbursement for the cost of procedures
performed by the out-of-network oral surgeon. The
court properly concluded that the defendant was enti-
tled to reimbursement for 60 percent of the cost of the
procedures performed by an in-network dentist or oral
surgeon.
V
Finally, the defendant claims that the court abused
its discretion by ordering her to pay attorney’s fees to
the plaintiff under § 46b-87. Specifically, the defendant
claims that the court erred in awarding the plaintiff
attorney’s fees because it also ordered the plaintiff to
reimburse the defendant for the children’s boarding
school tuition under the agreement. We disagree and
conclude that the court did not abuse its discretion
when it ordered the defendant to pay attorney’s fees
to the plaintiff because the court found in favor of the
plaintiff on the motion for contempt.
Section 46b-87 allows the court in its discretion to
award attorney’s fees to the prevailing party in a con-
tempt proceeding. See Gil v. Gil, 110 Conn. App. 798,
806–807, 956 A.2d 593 (2008). Section 46b-87 provides
in relevant part: ‘‘When any person is found in contempt
of an order of the Superior Court entered under section
46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive,
or 46b-86, the court may award to the [party who
brought the motion for contempt] a reasonable attor-
ney’s fee . . . such sums to be paid by the person found
in contempt . . . .’’ Likewise, ‘‘if any such person is
found not to be in contempt of such order, the court
may award a reasonable attorney’s fee to such person.’’
General Statutes § 46b-87.
‘‘Moreover, because the award of attorney’s fees pur-
suant to § 46b-87 is punitive, rather than compensatory,
the court properly may consider [a party’s] behavior as
an additional factor in determining both the necessity
of awarding attorney’s fees and the proper amount of
any award.’’ Esposito v. Esposito, 71 Conn. App. 744,
750, 804 A.2d 846 (2002).
On appeal, ‘‘[w]e review a trial court’s [ruling] as to
attorney’s fees . . . for an abuse of discretion. . . .
Under the abuse of discretion standard of review, [w]e
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . [Thus, our] review
of such rulings is limited to the questions of whether
the trial court correctly applied the law and reasonably
could have reached the conclusion that it did.’’ (Cita-
tions omitted; internal quotation marks omitted.) Gil
v. Gil, supra, 110 Conn. App. 802–803.
We conclude that the court did not abuse its discre-
tion when it awarded the plaintiff attorney’s fees in the
sum of $14,930. Because the court ‘‘found [the plaintiff]
not to be in contempt of [the] order,’’ it could, in its
discretion, ‘‘award a reasonable attorney’s fee to [the
plaintiff].’’ General Statutes § 46b-87. The court prop-
erly exercised its discretion when it concluded that,
‘‘as the court does not find the [plaintiff’s] actions to
arise to the level of wilful contempt, under all the cir-
cumstances, it is equitable and appropriate for the court
to award him reasonable attorney’s fees in the amount
of $14,930.’’
Moreover, the court made several factual findings
with respect to the defendant’s behavior, which are
relevant to the issue of attorney’s fees. The court noted
that ‘‘the [defendant] has offered to the court several
exhibits outlining her out-of-pocket expenditures on
behalf of the children, the list is very comprehensive,
detailing even the smallest, inconsequential items
[such] that the court questions her good faith and per-
spective. In particular, she has made arbitrary expendi-
tures based upon a strict reading of the agreement.’’
(Emphasis omitted.) The court also noted that opera-
tion of the agreement ‘‘relies upon the good faith and
good judgment of each of the parties, something the
[defendant] has clearly not exercised.’’ (Emphasis
added.) It is clear that the court considered the behavior
of the defendant, namely, her lack of good faith in
making expenditures under the agreement, when it
awarded attorney’s fees to the plaintiff. This was a
proper consideration for the court because attorney’s
fees under § 46b-87 are punitive rather than compensa-
tory, and the court may consider the defendant’s behav-
ior in determining the necessity of awarding attorney’s
fees. See Esposito v. Esposito, supra, 71 Conn. App. 750.
The fact that the court ordered the plaintiff to reim-
burse the defendant under the agreement does not
impact the court’s ability to award attorney’s fees to
the plaintiff as the prevailing party on the issue of con-
tempt. It is well established that ‘‘[c]ourts have in gen-
eral the power to fashion a remedy appropriate to the
vindication of a prior . . . judgment. . . . Having
found noncompliance, the court, in the exercise of its
equitable powers, necessarily ha[s] the authority to
fashion whatever orders [are] required to protect the
integrity of [its original] judgment. . . . This is so
because [i]n a contempt proceeding, even in the absence
of a finding of contempt, a trial court has broad discre-
tion to make whole a party who has suffered as a result
of another party’s failure to comply with the court
order.’’ (Citation omitted; emphasis in original; internal
quotation marks omitted.) Pressley v. Johnson, supra,
173 Conn. App. 408.
In the present case, as we explained previously in
this opinion, the court did not find the defendant in
contempt of the order because it determined that the
agreement was not clear and unambiguous. Upon so
finding, the court had the authority, in the exercise of
its equitable powers, to fashion an order designed to
protect the integrity of the dissolution judgment. To
that end, the court ordered that the plaintiff pay any
outstanding tuition for the children’s senior year of
boarding school and reimburse the defendant for any
tuition that she had already paid for that year. Notwith-
standing this order, because the plaintiff was the pre-
vailing party on the issue of contempt, the court had
the discretion, under § 46b-87, to award attorney’s fees
to the plaintiff. Because we have determined that the
court reasonably could have reached the conclusion
that it did, we conclude that the court did not abuse
its discretion in awarding attorney’s fees to the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Article 5.1 of the agreement provides: ‘‘The [plaintiff] shall pay 60 [per-
cent] and the [defendant] shall pay 40 [percent] of any reasonably incurred,
unreimbursed or uninsured medical expense for the benefit of the children.
In year five, and provided that the children are attending boarding or private
school, the [plaintiff] shall pay 100 [percent] of said expenses. Each party
shall obtain the agreement of the other when a child required non-emergency,
non-routine medical treatment, but such approval may not unreasonably be
withheld. The parties shall account to each other and make payments to
each other in accordance with this obligation on a quarterly basis. Both
parties may submit claims directly to the insurer, and reimbursement to the
party who advanced payment shall be made within [ten] days after submis-
sion of proof of payment.’’
2
Article 5.2 of the agreement provides: ‘‘If the children, by agreement of
the parties, attend boarding or private school, their tuition, room and board,
years one through four, shall be paid [60 percent] by the [plaintiff] and [40
percent] by the [defendant]. In year five, tuition, room and board shall be
paid [100 percent] by the [plaintiff].
3
Article 5.3 of the agreement provides in relevant part: ‘‘Children’s
expenses during their school years shall be paid [60 percent] by the [plaintiff]
and [40 percent] by the [defendant]. In year five, if the children are attending
boarding school, all of their expenses shall be paid [100 percent] by the
[plaintiff]. Such expenses to be shared by the parties shall include, but are
not limited to, all school related educational, extracurricular and social
activities; non-school related educational and extracurricular [activities];
organization/team/program fees, equipment, and team travel related
expenses; all organized summer programs including transportation; enrich-
ment programs such as music lessons, sports lessons, and the like; necessary
tutors; pre-boarding school and pre-college expenses, including, but not
limited to, testing and preparatory classes, tutors, college coaches, applica-
tion fees, travel expenses for pre-application boarding school and college
visits; driver’s education and other expenses for a child to obtain and hold
a license to drive an automobile (car insurance, cars and related fuel and
maintenance) and the like.’’
4
Article 5.4 of the agreement provides: ‘‘In the event the [defendant] has
paid, on behalf of the children, any of the expenses set forth in paragraph
5.3 for which the [plaintiff] is responsible, the [plaintiff] shall reimburse the
[defendant] for the amount she has paid one month after proof of payment.’’
5
Article 3.5 of the agreement provides: ‘‘In the event that alimony payments
terminate, for whatever reason, and the [plaintiff] is obligated to provide
child support for the parties’ children pursuant to [General Statutes] § 46b-
84, 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 [plaintiff] shall make child support payments until the children reach
the age of [eighteen], unless the children have not graduated from high
school, in which event, the [plaintiff] shall pay child support until the later
of the children’s graduation from high school or the children’s [nine-
teenth] birthday.’’
6
General Statutes § 46b-84 (a) provides in relevant part: ‘‘Upon or subse-
quent to the annulment or dissolution of any marriage or the entry of a
decree of legal separation or divorce, the parents of a minor child of the
marriage, shall maintain the child according to their respective abilities, if
the child is in need of maintenance. . . .’’
General Statutes § 46b-84 (b) further provides in relevant part: ‘‘If there
is an unmarried child of the marriage who has attained the age of eighteen
and is a full-time high school student, the parents shall maintain the child
according to their respective abilities if the child is in need of maintenance
until such child completes the twelfth grade or attains the age of nineteen,
whichever occurs first. . . .’’
7
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support . . . may, at any time
thereafter, be continued, set aside, altered or modified by the court upon
a showing of a substantial change in the circumstances of either party . . . .’’
8
In its memorandum of decision, the court found ‘‘particularly troubling’’
the course of action taken by the parties after the defendant’s remarriage,
which caused, under the terms of the agreement, the termination of the
defendant’s alimony and led the plaintiff to ‘‘[make] no further alimony
payments to the [defendant].’’ The court observed that neither the plaintiff
nor the defendant took any steps to unbundle the existing unallocated award
for the purpose of determining the appropriate amount of child support for
the two children, who had a right to parental support under § 46b-84 (b).
The court stated that, ‘‘[i]nstead of ignoring the issue, or worse, using self-
help, the better procedure is for one of the parties to move either for a
modification based upon substantially changed circumstances, or a motion
for order to determine child support. In that way, the court would have an
opportunity to determine whether, under all the circumstances, the children
are in need of maintenance and, if so, to award an appropriate amount of
child support and, more important, to protect the fundamental legal right
of the minor children to receive it. Instead, their informal arrangement, and
the [defendant’s] attempt to enforce it and the ambiguous terms of their
court-approved agreement, through contempt, have simply complicated
the process.’’
Although, at the hearing on the motion for contempt, the parties did not
request that the court determine the appropriate amount of child support
after the defendant remarried, and the defendant does not raise a claim of
this nature in this appeal, we emphasize that the trial court’s criticism of
the parties’ course of action was entirely appropriate. As this court has
observed, it is well established that ‘‘the independent nature of a child’s
right to support . . . [is a] right [that] cannot be vitiated or circumscribed
by way of an agreement between the parents. . . . [Parents] cannot make
a contract with each other regarding the maintenance or custody of their
child which the court is compelled to enforce . . . .’’ (Citations omitted;
internal quotation marks omitted.) Kirwan v. Kirwan, 185 Conn. App. 713,
731–32, 197 A.3d 1000 (2018). ‘‘[A]s a matter of public policy . . . issues
involving custody, visitation, and child support must be resolved only by a
court.’’ Id., 733. The trial court identified the parties’ failure to seek judicial
assistance when modification became necessary. See, e.g., Riscica v. Ris-
cica, 101 Conn. App. 199, 201, 921 A.2d 633 (2007). Even though neither
party sought judicial assistance when the alimony portion of the unallocated
award terminated, the trial court in family matters is vested with wide
discretion and broad equitable powers. The court had the opportunity to
take steps to rectify the problem it had identified, and perhaps it should
have done so. ‘‘The power to act equitably is the keystone to the court’s
ability to fashion relief in the infinite variety of circumstances which arise
out of the dissolution of a marriage. Without this wide discretion and broad
equitable power, the courts in some cases might be unable fairly to resolve
the parties’ dispute . . . .’’ (Internal quotation marks omitted.) Foisie v.
Foisie, 335 Conn. 525, 543, 239 A.3d 1198 (2020). ‘‘For that reason, equitable
remedies are not bound by formula but are molded to the needs of justice.’’
(Internal quotation marks omitted.) Id. Nevertheless, because this issue has
not been raised in the trial court or in this appeal, we address it no further.
9
In its memorandum of decision, the court stated: ‘‘It has long been the
law, that, based upon their ‘unique human relationship,’ divorcing spouses
owe a duty to each other of ‘full and frank disclosure’ of their financial
circumstances, ‘no less than’ if they were in a ‘fiduciary to beneficiary’
relationship. . . . It is not a stretch to find that, in their postjudgment
dealings, especially when it comes to their children, that the parties also
have a duty of fair dealing in the execution of their agreements. Courts have
encouraged agreements by and between parties as a means to avoid conflict
and to resolve differences. While each is entitled to their opinion as to the
meaning of a particular clause, in doing so, they should not take unfair
advantage of contractual provisions that are wide open or less than clear.
In other words, honoring the spirit of an agreement is just as important,
and to ignore it is likely to lead to unnecessary conflict and the concomitant
waste of assets. This case is a prime example.’’ (Citation omitted.)
10
For clarification, we note that the defendant did not ask the trial court
to find an arrearage related to an order of child support, nor is that an issue
raised in this appeal.
11
We note that the court did order the plaintiff to reimburse the defendant
for the children’s tuition at Choate Rosemary Hall for their senior year.
The court found that, although the agreement was ‘‘ambiguous and the
[plaintiff’s] actions do not rise to the level of contempt . . . 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 . . . .’’ The court ultimately found that, under
the agreement, ‘‘the children’s senior year at Choate Rosemary Hall is the
‘[fifth] year’ . . . contemplated by the parties and that the [plaintiff’s] obliga-
tion is [100 percent] thereof.’’ The fact that the court, in the absence of a
finding of contempt, ordered the plaintiff to reimburse the defendant for
the children’s boarding school tuition after interpreting the agreement to
require him to do so demonstrates that the court was aware of its ability
to enter orders to preserve the integrity of the agreement.