Kirwan v. Kirwan

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CHELSEA CHAPMAN KIRWAN v.
LAURENCE KIRWAN
(AC 40789)
Alvord, Prescott and Norcott, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgments of the trial court
ordering him to pay for a portion of his children’s private middle school
tuition and finding him in contempt for violating that order. The dissolu-
tion judgment incorporated by reference a pendente lite arbitration
award that had resolved many of the issues raised in the dissolution
action. The parties, however, expressly reserved for the trial court reso-
lution of child related financial issues. Thereafter, following a hearing,
the trial court issued child support orders, which, by agreement of the
parties, were made retroactive to the date of the dissolution judgment,
and ordered, inter alia, that the parties were to make determinations
regarding their children’s private middle school education in accordance
with their parenting plan and that they would share the children’s educa-
tional expenses, with the plaintiff responsible for 25 percent and the
defendant responsible for 75 percent. Subsequently, the plaintiff filed
a motion for an order requesting that the court order the defendant to
pay his share of their children’s private middle school tuition for the
2015–2016 and 2016–2017 academic years, and later requested that the
defendant also pay his share of the 2017–2018 tuition. The defendant
objected to the motion for an order, arguing that the children’s enroll-
ment in the school had not been made in compliance with the parties’
parenting plan, which provided that the parties must consider, discuss
and agree on major decisions concerning their children’s education. The
children began attending the private middle school in the fall of 2014,
and the parties entered into their parenting plan in May, 2015. The
trial court granted the plaintiff’s motion for an order and ordered the
defendant to pay 75 percent of the children’s private middle school
tuition for the subject academic years, and the defendant appealed to
this court. Thereafter, the plaintiff filed a motion for contempt, alleging
that the defendant had failed to pay the children’s private middle school
tuition in violation of the court’s order. The trial court granted the
motion for contempt, finding that the defendant’s failure to comply
with its order was wilful. On the defendant’s amended appeal to this
court, held:
1. The defendant could not prevail on his claim that the trial court erred
by ordering him to pay 75 percent of his children’s private middle school
tuition for the 2015–2016, 2016–2017 and 2017–2018 academic years,
which was based on his claim that the children’s enrollment in the
school was not decided in accordance with the parties’ parenting plan;
that court did not abuse its discretion in granting the plaintiff’s motion
for an order because even if the plaintiff did not confer or consult
with the defendant regarding the children’s continued enrollment in the
private middle school pursuant to the parenting plan, the parties’ deci-
sion to enroll the children in the school had been made by the fall of
2014, and the 2015 parenting plan was forward looking, governing the
parties’ collaborative behavior as to future child rearing decisions, and,
therefore, the trial court reasonably could have found the defendant
responsible for his 75 percent share of the children’s private middle
school tuition for the subject academic years.
2. The defendant could not prevail on his claim that the trial court erred
by ordering him to pay the portion of the children’s 2015–2016 tuition
that was incurred prior to the dissolution of the parties’ marriage in
October, 2015; the trial court did not abuse its discretion in allocating
the marital tuition debt for the 2015–2016 academic year in addition to
allocating responsibility for the postdissolution tuition for the 2016–2017
and 2017–2018 academic years in accordance with its child related finan-
cial orders, that court having properly exercised its authority pursuant
to the applicable statute (§ 46b-81) to allocate between the parties the
marital debt related to the children’s 2015–2016 private middle school
tuition, which was incurred prior to the entry of the dissolution judgment.
3. The trial court did not abuse its discretion in finding the defendant in
contempt for his failure to comply with its order regarding the children’s
private middle school tuition: the trial court’s underlying order was
sufficiently clear and unambiguous to support its finding of contempt,
as the court clearly stated that the defendant was obligated to pay 75
percent of the children’s private middle school tuition for the 2015–2016,
2016–2017 and 2017–2018 academic years, and its suggestion to the
defendant regarding potential outside avenues to effectuate payment of
his tuition obligation did not make unclear his financial responsibility
for the arrearage created by his failure to pay his share of the tuition;
moreover, the defendant’s contention that he was unable to pay for the
children’s tuition, and, therefore, that his noncompliance with the order
was not wilful was unavailing, as the court’s findings that the defendant’s
annual income was approximately $400,000 and that he did not meet
his burden of proving that he was unable to pay his court-ordered
obligation were supported by the testimony of the defendant’s accoun-
tant and, thus, were not clearly erroneous.
Argued October 25, 2018—officially released January 22, 2019
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, where the court, Tindill, J.,
approved the agreement of the parties to enter into
binding mediation/arbitration as to certain disputed
matters; thereafter, the arbitrator issued an award and
entered certain orders; subsequently, the arbitrator
issued a clarification of the award; thereafter, the court
granted the defendant’s motion to confirm the arbitra-
tor’s award and rendered judgment incorporating the
arbitrator’s award and clarification, and dissolving the
marriage and granting certain other relief; subsequently,
the court issued certain orders; thereafter, the court,
Heller, J., granted the plaintiff’s motion for an order
regarding certain tuition payments; subsequently, the
court, Heller, J., denied the defendant’s motion to rear-
gue, and the defendant appealed to this court; there-
after, the court, Heller, J., issued an articulation of its
decision; subsequently, the court, Heller, J., granted the
plaintiff’s motion for contempt, and the defendant filed
an amended appeal. Affirmed.
Laurence Kirwan, self-represented, the appellant
(defendant).
Joseph T. O’Connor, for the appellee (plaintiff).
Opinion
ALVORD, J. The present appeal arises following the
trial court’s October 23, 2015 judgment dissolving the
marriage of the plaintiff, Chelsea Chapman Kirwan, and
the self-represented defendant,1 Laurence Kirwan. The
judgment incorporated by reference a pendente lite
arbitration award that had resolved many of the issues
raised in the dissolution action, including alimony, the
distribution of marital assets, and the enforceability of
a premarital agreement. Both the parties’ arbitration
agreement and the arbitrator’s award, however,
expressly reserved for the Superior Court resolution of
child related financial issues.2 Following an evidentiary
hearing, the court, on December 7, 2016, issued child
support orders, which, by agreement of the parties,
were made retroactive to the date of the dissolution
judgment. On that same date, the court also ordered
the parties to make determinations regarding their chil-
dren’s private middle school education in accordance
with their parenting plan. In this appeal, the defendant
challenges two subsequent judgments of the trial court,
ordering him to pay for a portion of his children’s private
middle school tuition3 and finding him in contempt
when he failed to do so.
On appeal, the defendant raises various repetitive
and overlapping claims of error, which this court has
distilled into the three inclusive issues addressed in this
opinion. The core of the defendant’s claims are that the
court erred in (1) ordering him to pay 75 percent of his
children’s private middle school tuition for the 2015–
2016, 2016–2017, and 2017–2018 academic years,
because their enrollment in the school was not decided
pursuant to the parties’ parenting plan, (2) ordering him
to pay for a portion of the 2015–2016 school year tuition
that was incurred before October 23, 2015, the date of
the dissolution, and (3) finding him in contempt. We
disagree and, accordingly, affirm the judgments of the
trial court.
The following facts and procedural history, relevant
to our resolution of the defendant’s claims in the present
appeal, were recently set forth by this court in Kirwan
v. Kirwan, 185 Conn. App. 713, A.3d (2018).4
‘‘The parties were married in 2001. The defendant is a
plastic surgeon with offices in New York, Norwalk, and
London, as well as a consultant and a professor of
plastic surgery. The plaintiff is college educated and
worked in pharmaceutical sales until shortly after she
married the defendant, at which time she worked for
the defendant in his medical practice. The parties have
three minor children together, one of whom has special
needs. Prior to their marriage, the parties entered into
a premarital agreement that, in relevant part, limited
the plaintiff’s alimony in the event of divorce to $50,000
a year for five years and allocated 45 percent of the
value of the marital home to the plaintiff as her share
of marital property. In September, 2012, the plaintiff
initiated an action to dissolve the parties’ marriage.
‘‘On May 26, 2015, the court, Tindill, J., approved an
agreement by the parties to enter into binding media-
tion/arbitration of the dissolution action. Pursuant to
the parties’ arbitration agreement, which was made an
order of the court, ‘[t]he parties agree[d] that the follow-
ing issues in their action for dissolution of marriage
shall be the subject of mediation and, if the parties are
unable to resolve these issues via mediation, to binding
arbitration . . . .’ The list of issues to be resolved in
arbitration included the validity and enforceability of
the premarital agreement; the validity of an alleged
rescission of that premarital agreement; a determina-
tion of alimony in accordance with General Statutes
§ 46b-82; an equitable division of marital property,
assets, and liabilities pursuant to General Statutes
§ 46b-81; division of attorney’s fees and guardian ad
litem fees; and any other relief deemed appropriate by
the arbitrator ‘except as it pertains to child custody and
issues of child support.’
‘‘On August 4, 2015, the arbitrator, former Superior
Court Judge Elaine Gordon, issued her arbitration
award. As a preliminary matter, the arbitrator deter-
mined that the parties’ premarital agreement was
unconscionable, and thus unenforceable, due to ‘the
present, uncontemplated circumstances’ of the parties.5
The arbitrator issued a number of orders regarding ali-
mony and the distribution of marital assets, including
an order directing the sale of the marital home. In sup-
port of her orders, the arbitrator made several factual
findings, including that ‘[t]he defendant’s annual [gross]
income is found to be approximately $400,000 per year
based on his income tax returns, business financial
statements and the information he has provided to lend-
ing institutions on his applications.’ As previously
noted, the arbitration award indicated that ‘[t]he issues
of custody, access, child support, maintenance and cost
of medical insurance for minor children and unreim-
bursed medical expenses are reserved to the Connecti-
cut Superior Court.’
‘‘On September 1, 2015, the defendant filed a motion
asking the court to confirm the arbitration award and
to render judgment dissolving the parties’ marriage in
accordance with the arbitration award. On that same
date, the plaintiff filed a motion asking the court to
issue orders on the unresolved matters of child support
and postsecondary educational expenses. Neither party
filed an objection to the other party’s motion, and the
matters were set down for a hearing on October 23,
2015. At that time, the court rendered a judgment of
dissolution of marriage that incorporated by reference
the arbitration award and subsequent clarification. The
parties agreed that the court would determine the defen-
dant’s child support obligations, including the issue of
unreimbursed medical expenses and child care, after an
evidentiary hearing, and that child support obligations
would be made retroactive to the date of dissolution.’’
(Footnotes altered.)
The following additional facts, as found by the trial
court, and procedural history are relevant to our resolu-
tion of this current appeal by the defendant. On Decem-
ber 7, 2016, following a five day hearing on child related
financial orders as well as several postjudgment
motions, the court issued a memorandum of decision
ordering, inter alia, that the parties were to make deter-
minations regarding their children’s private middle
school education in accordance with their parenting
plan.6 The court also ordered that the parties would
share the children’s educational expenses, with the
plaintiff responsible for 25 percent and the defendant
responsible for 75 percent.
During the course of the marriage and after the
divorce proceeding was filed, the parties’ children had
attended private school at the French-American School
of New York from kindergarten through the fourth
grade, as the parents agreed that their children should
have a more European focused education. The French-
American School of New York, upon the plaintiff’s
inquiry, recommended Saints John and Paul School for
the children because it had a similar program but cost
less money. The children were accepted into middle
school at Saints John and Paul School beginning in the
fall of 2014 for their fifth grade year. The middle school
at Saints John and Paul School ran from fifth grade
through eighth grade.
In January, 2015, the defendant visited Saints John
and Paul School, where his daughters were enrolled in
fifth grade. The defendant met with the school’s assis-
tant principal. During the visit, he asked questions about
the school and his children’s French language studies.
At that time, he expressed no objection to his children
being educated at Saints John and Paul School.
On January 19, 2017, the plaintiff filed a motion for
an order regarding the defendant’s payment of his share
of the private middle school tuition. In this motion, the
plaintiff requested that the court order the defendant
to pay $36,000, representing his share of the tuition
costs for the 2015–2016 and 2016–2017 academic years.
The plaintiff later requested that the defendant also pay
his share of the 2017–2018 tuition costs. In objecting
to the plaintiff’s motion for an order, the defendant
argued that the children’s enrollment in private middle
school had not been made in compliance with the May,
2015 parenting plan and that he was therefore not obli-
gated to pay his share of the tuition costs. On June 22,
2017, the plaintiff filed a motion seeking an immediate
hearing on her motion for order, wherein she also
replied to arguments raised in the defendant’s objection
to her motion for an order.
On July 17, 2017, the trial court, Heller, J., on the
record, granted the plaintiff’s January 19, 2017 motion
for order and overruled the defendant’s objection
thereto. Specifically, the court found that ‘‘under the
orders that were entered by Judge Tindill in December,
2016 retroactive to October, [2015], the defendant is
obligated to pay 75 percent of the tuition that is past
due from 2015 to 2016 and 2016 to 2017, and for the
coming year of 2017 to 2018.’’ On July 31, 2017, the
defendant filed a motion to reargue. On August 25, 2017,
the court issued a written order summarily denying that
motion. The defendant then filed this timely appeal.
On September 11, 2017, the defendant filed a motion
for articulation of the trial court’s July 17, 2017 decision.
The plaintiff filed an objection thereto. The trial court
summarily denied the motion for articulation and sus-
tained the objection thereto. The defendant then filed
a motion for review with this court.
On January 18, 2018, this court ordered the trial court
to articulate the factual and legal basis of its July 17,
2017 decision to the extent that the defendant argued
that he was not required to pay tuition costs incurred
prior to October 23, 2015. On January 26, 2018, the
trial court articulated its decision. It explained that the
plaintiff incurred the debt to Saints John and Paul
School for the parties’ children during the 2015–2016
school year prior to the entry of the October, 2015
dissolution judgment, and that, under § 46b-81, the
court had the authority to allocate some or all of this
liability to the defendant.
On August 9, 2017, the plaintiff filed a motion for
contempt. The plaintiff claimed that the defendant had
failed to pay, or make arrangements to pay, the amount
that he owed to Saints John and Paul School, in violation
of the court’s July 17, 2017 decision. The court held a
hearing on the plaintiff’s motion on October 2 and 23,
and December 8, 2017.7 As of the October 2 hearing
date, the defendant had failed to make any payments
to Saints John and Paul School on his court-ordered
share of the children’s tuition. By the December 8 hear-
ing date, the defendant had paid only $3500 to Saints
John and Paul School toward his $54,894.40 tuition obli-
gation.
On February 5, 2018, the court found the defendant
in contempt for failing to comply with the court’s July
17, 2017 order to pay 75 percent of his children’s tuition
for the 2015–2016, 2016–2017, and 2017–2018 academic
years. In finding the defendant in contempt, the court
determined that the defendant’s failure to comply with
the court’s order was wilful. The defendant’s annual
income from his medical practice was approximately
$400,000. Rather than paying for his children’s tuition,
the defendant chose to satisfy over $100,000 in other
debt. In addition, although he was entitled to $53,519
from his 2016 federal income tax return, the defendant
chose to apply the entire amount to his 2017 estimated
taxes. In finding the defendant in contempt, the court
ordered him incarcerated but stayed the order of incar-
ceration to provide him with an opportunity to purge
the contempt by making a payment of $10,278.88 to the
plaintiff, which represented 20 percent of the total due
by the defendant to Saints John and Paul School. Lastly,
the court awarded, pursuant to General Statutes § 46b-
87, the plaintiff attorney’s fees for the preparation and
prosecution of the motion for contempt. The defendant
thereafter filed an amended appeal. Additional facts
will be set forth as necessary.
I
The defendant claims that the trial court erred by
ordering him to pay 75 percent of his children’s private
middle school tuition for the 2015–2016, 2016–2017, and
2017–2018 academic years, because their enrollment in
the school was not decided pursuant to the parenting
plan he entered into on May 26, 2015.8 Specifically, he
argues that, under the parenting plan, the plaintiff was
obligated to confer and consult with him regarding their
children’s education. He claims that the plaintiff failed
to do so, and, therefore, he is not obligated to pay his
75 percent share of the children’s tuition. We disagree.
We begin by setting forth the relevant standard of
review. ‘‘An appellate court will not disturb a trial
court’s orders in domestic relations cases unless the
court has abused its discretion or it is found that it
could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Thus,
unless the trial court applied the wrong standard of
law, its decision is accorded great deference because
the trial court is in an advantageous position to assess
the personal factors so significant in domestic relations
cases . . . .’’ (Internal quotation marks omitted.)
Budrawich v. Budrawich, 156 Conn. App. 628, 637, 115
A.3d 39, cert. denied, 317 Conn. 921, 118 A.3d 63 (2015).
We conclude that the court did not abuse its discre-
tion when it granted the plaintiff’s motion for an order
on July 17, 2017,9 even if the plaintiff did not confer or
consult with the defendant regarding their children’s
continued enrollment at Saints John and Paul School.
The parties’ children began attending middle school
at Saints John and Paul School in the fall of 2014. In
January, 2015, the defendant visited Saints John and
Paul School and expressed no objection to his children
being enrolled at its middle school.10 At the time the
parties entered into their parenting plan, in May, 2015,
the children were finishing their first year of middle
school at Saints John and Paul School. The parenting
plan provides that the parties must consider, discuss
and agree on major decisions concerning, inter alia,
their children’s education. Specifically, the parenting
plan provides in relevant part: ‘‘Major decisions, which
shall be defined as those key issues [affecting] the minor
children’s health [and] course of study . . . shall be
considered, discussed, and agreed to by both parties.
. . . The parties recognize that the joint custody provi-
sion herein imposes an affirmative obligation to confer
and consult with each other and arrive at a consensus
regarding major decisions concerning the health, educa-
tion and welfare of the minor children.’’ The parenting
plan does not mention the children’s ongoing enroll-
ment in Saints John and Paul School.
In its July 17, 2017 order, the court explained that
the children’s continued enrollment in middle school
at Saints John and Paul School was not a decision
governed by the parenting plan because ‘‘[t]hat was the
status quo. This was not a future plan or a major deci-
sion because they were already attending that school
when the parties entered into the parenting plan.’’
The decision to enroll the children in Saints John and
Paul School had been made by the fall of 2014, when
the children first entered the middle school program.
The parenting plan was forward looking and governed
the parties’ collaborative behavior as to future child
rearing decisions. Thus, the court reasonably could
have found the defendant responsible for his 75 percent
share of the children’s private middle school tuition for
the 2015–2016, 2016–2017, and 2017–2018 academic
years.
II
The defendant also claims that the trial court erred
by ordering him to pay the children’s tuition that was
incurred prior to the October 23, 2015 date of the disso-
lution. He argues that the court, in its December 7,
2016 memorandum of decision, ordered that he pay 75
percent of the children’s private middle school tuition
retroactive to October 23, 2015, the date of the dissolu-
tion, and, therefore, that order did not cover tuition
fees incurred prior to that date. We disagree.
As stated in part I of this opinion, this court ‘‘will not
disturb a trial court’s orders in domestic relations cases
unless the court has abused its discretion or it is found
that it could not reasonably conclude as it did, based
on the facts presented. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action. . . . Thus,
unless the trial court applied the wrong standard of
law, its decision is accorded great deference because
the trial court is in an advantageous position to assess
the personal factors so significant in domestic relations
cases . . . .’’ (Internal quotation marks omitted.)
Budrawich v. Budrawich, supra, 156 Conn. App. 637.
Under § 46b-81, a court may assign to either party all
or any part of the estate of the other party at the time
of entering a decree dissolving a marriage. Section 46b-
81 ‘‘confers broad powers upon the court in the assign-
ment of property, and the allocation of liabilities and
debts is a part of the court’s broad authority in the
assignment of property.’’11 (Internal quotation marks
omitted.) Roos v. Roos, 84 Conn. App. 415, 420, 853
A.2d 642, cert. denied, 271 Conn. 936, 936, 861 A.2d
510 (2004).
The plaintiff incurred the debt at issue, to Saints John
and Paul School for the 2015–2016 academic year, prior
to the entry of the October 23, 2015 dissolution judg-
ment. This children’s private middle school tuition bill
remained unpaid as of the date of the parties’ dissolu-
tion. The court had the authority pursuant to § 46b-81
to consider the division of this marital liability in the
October, 2015 dissolution judgment if the parties had
requested it to do so at that time.12 However, at the
time of the dissolution, the parties agreed to reserve
judicial consideration of all child related financial
issues. Thereafter, on December 7, 2016, the court
addressed those child related financial issues and deter-
mined, inter alia, each parent’s share of the children’s
private middle school tuition. Subsequently, on July 17,
2017, the court ruled on the plaintiff’s motion for an
order on the defendant’s payment of his share of the
private middle school tuition. On this date, the court
exercised its authority, under § 46b-81, to allocate
between the parties the marital debt related to the chil-
dren’s 2015–2016 private middle school tuition. It was
not an abuse of the court’s discretion to allocate the
marital tuition debt for the 2015–2016 academic year
in addition to allocating responsibility for the postdisso-
lution tuition for the 2016–2017 and 2017–2018 aca-
demic years in accordance with its December 7, 2016
child related financial orders.
III
Finally, the defendant claims that the court erred by
finding him in contempt. Specifically, he argues that
(1) the court’s July 17, 2017 order was not sufficiently
clear and unambiguous, (2) the court’s factual findings
regarding his ability to comply with the order, based
on his income, were not supported by the evidence, (3)
the court considered the use of his funds prior to the
July 17, 2017 order even though there were no automatic
orders in place limiting the use of those funds, and (4)
he did not have the funds to comply with the order,
and, therefore, his noncompliance was not wilful.13 We
conclude that this claim has no merit.
We begin by setting forth our standard of review and
relevant legal principles. ‘‘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.’’
(Footnote omitted; internal quotation marks omitted.)
Keller v. Keller, 158 Conn. App. 538, 545, 119 A.3d 1213
(2015). ‘‘[T]he credibility of witnesses, the findings of
fact and the drawing of inferences are all within the
province of the trier of fact. . . . We review the find-
ings to determine whether they could legally and rea-
sonably be found, thereby establishing that the trial
court could reasonably have concluded as it did.’’ (Inter-
nal quotation marks omitted.) O’Connell v. O’Connell,
101 Conn. App. 516, 521, 922 A.2d 293 (2007).
The defendant first argues that the court’s July 17,
2017 order was not sufficiently clear and unambiguous.
To support his contention, the defendant directs our
attention to the court’s suggestion that the defendant
consider, ‘‘if this is an economic hardship to make a
substantial lump sum payment for tuition, that he con-
sult with the school and ask whether a payment plan
would be possible for him to continue to pay that.’’ The
defendant, in essence, argues that the court’s suggestion
rendered the tuition payment order ambiguous. We dis-
agree. The court clearly stated that ‘‘the defendant is
obligated to pay 75 percent of the tuition that is past
due from 2015 to 2016 and 2016 to 2017 and for the
coming year of 2017 to 2018.’’ The court’s suggestion
to the defendant regarding potential outside avenues
to effectuate payment of his tuition obligation did not
make unclear his financial responsibility for the arrear-
age created by his failure to pay his share of the chil-
dren’s private middle school tuition. Thus, we conclude
that the court’s July 17, 2017 order was sufficiently clear
and unambiguous to support its February 5, 2018 finding
of contempt.
The defendant’s next three arguments are based on
his contention that he was unable to pay for his chil-
dren’s tuition. He argues that, due to his inability to
pay, his failure to comply with the court’s order was
not wilful, and, therefore, he could not be held in con-
tempt. To constitute contempt, ‘‘a party’s conduct must
be wilful. . . . Noncompliance alone will not support
a judgment of contempt. . . . [I]nability to pay is a
defense to a contempt motion. However, the burden of
proving inability to pay rests upon the obligor.’’ (Inter-
nal quotation marks omitted.) Marshall v. Marshall, 151
Conn. App. 638, 650–51, 97 A.3d 1 (2014). The court
found that the defendant’s annual income was approxi-
mately $400,000 and that he did not meet his burden
of proving that he was unable to pay his court-
ordered obligation.
We review the court’s factual findings in the context
of a motion for contempt to determine whether they
are clearly erroneous. ‘‘A factual finding is clearly erro-
neous 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.’’ (Internal
quotation marks omitted.) Dionne v. Dionne, 115 Conn.
App. 488, 494, 972 A.2d 791 (2009). During the October
23, 2017 hearing on the plaintiff’s motion for contempt,
the defendant called his accountant, Philip Ayoub, to
testify as to his ‘‘actual disposable income’’ from his
professional service corporation for the first six months
of 2017. Ayoub explained that the defendant, as the sole
shareholder of Dr. K Services, P.C., his medical practice,
has two sources of income from that corporation, as
he is paid a salary and also is entitled to the income
from the profits of his medical practice. Ayoub testified
that, from January to June, 2017, the defendant received
W-2 wages of $105,573.06 and was entitled to receive
approximately $95,000 from the profits of his medical
practice. The testimony of the defendant’s accountant
provided a basis for the court’s findings, and, thus, they
were not clearly erroneous. Therefore, we conclude
that the court did not abuse its discretion in finding the
defendant in contempt.
The judgments are affirmed.
In this opinion the other judges concurred.
1
In the trial court, The Pickel Law Firm, LLC, and Meyers Breiner & Kent,
LLP, filed limited appearances on behalf of the defendant. The defendant
is appearing as a self-represented party in this appeal.
2
Specifically, the arbitrator’s award stated in relevant part: ‘‘The issues
of custody, access, child support, maintenance and cost of medical insurance
for the minor children and unreimbursed medical expenses are reserved to
the Connecticut Superior Court.’’
3
Although the parties have three minor children together, all references
to the children herein shall refer solely to the parties’ twin daughters, whose
private middle school tuition is the subject of this appeal.
4
In Kirwan v. Kirwan, supra, 185 Conn. App. 718, the defendant chal-
lenged the trial court’s child support orders and a subsequent remedial order
that the court issued in response to a motion for contempt for nonpayment
of child support that required the defendant to make a $91,000 lump sum
payment to the plaintiff to satisfy a child support arrearage. This court
rejected the defendant’s claims. See id., 752 (affirming trial court’s
judgments).
5
The arbitrator stated in relevant part: ‘‘To leave the plaintiff, who has
no experience in a competitive workplace after thirteen years, with no
assets, an alimony award of five years, which is unrelated to either the
plaintiff’s needs or the defendant’s income, and responsibility for three
children, one of whom has special needs, is more than unfair or onerous,
it is unconscionable.’’
6
The parties’ parenting plan, executed on May 26, 2015, provides that
they must consider, discuss and agree on major decisions concerning, inter
alia, their children’s education. Specifically, the parenting plan provides in
relevant part: ‘‘Major decisions, which shall be defined as those key issues
[affecting] the minor children’s health [and] course of study . . . shall be
considered, discussed, and agreed to by both parties. . . . The parties recog-
nize that the joint custody provision herein imposes an affirmative obligation
to confer and consult with each other and arrive at a consensus regarding
minor children.’’
7
At the same time, the court also considered a motion for an order that
the defendant had filed on August 10, 2017. In his motion, the defendant
sought a court order that his children attend the public school in the Rye,
New York, school district. The court denied the defendant’s motion in its
February 5, 2018 memorandum of decision. The defendant did not appeal
the court’s denial of this motion.
8
In addition to the defendant’s claims challenging the substance of the
court’s decision, he sets forth several claims challenging the court’s authority
to rule on the issue of the children’s private middle school tuition. He argues
that (1) the court was bound by the findings of the arbitration award, (2)
the court erred when it considered the issue of private middle school tuition
because child support, maintenance, and unreimbursed medical expenses
were the only issues reserved by the court, (3) the court erred in disturbing
orders of the parenting plan, (4) the tuition was the subject of a motion for
modification, and (5) the tuition was the subject of an automatic stay. These
claims have no merit.
The crux of the defendant’s first and second claims are that the children’s
tuition was not included within the child related financial issues that were
reserved to the trial court. We disagree. The arbitration award indicated
that ‘‘[t]he issues of custody, access, child support, maintenance and cost
of medical insurance for minor children and unreimbursed medical expenses
are reserved to the Connecticut Superior Court.’’ Although the children’s
tuition was not explicitly listed as one of the issues reserved, the parties
consistently treated the tuition as part of the child related financial issues
to be addressed by the court. Next, the court did not disturb the orders of
the parenting plan. Rather, the court found that the parenting plan did not
apply. Moreover, in the defendant’s motion for modification, which he filed
on December 19, 2016, the defendant sought to modify his weekly child
support obligation. The motion did not address the issue of the children’s
tuition. Lastly, nothing in the record indicates that there was an automatic
stay in place regarding child support or the children’s tuition. See Schull v.
Schull, 163 Conn. App. 83, 99, 134 A.3d 686, cert. denied, 320 Conn. 930,
133 A.3d 461 (2016) (orders related to child support are not automatically
stayed under Practice Book § 61-11 (c) pending the period of an appeal).
9
The defendant also claims that the court erred by denying his July 31,
2017 motion to reargue and his September 11, 2017 motion for articulation
regarding the court’s July 17, 2017 ruling. We consider these claims to be
inadequately briefed and therefore decline to address them. ‘‘Claims are
inadequately briefed when they are merely mentioned and not briefed
beyond a bare assertion. . . . Claims are also inadequately briefed when
they . . . consist of conclusory assertions . . . with no mention of relevant
authority and minimal or no citations from the record . . . .’’ (Internal
quotation marks omitted.) Estate of Rock v. University of Connecticut, 323
Conn. 26, 33, 144 A.3d 420 (2016).
10
On appeal, the defendant also claims that he was improperly precluded
from presenting evidence of (1) a letter sent by his attorney to the plaintiff’s
attorney during settlement negotiations for the parenting plan, and (2) e-mail
correspondence between himself and his attorney. He claims that this evi-
dence exhibited his objection to the children’s enrollment at Saints John
and Paul School. With respect to the settlement negotiations, the defendant
offered a letter from his attorney sent during negotiations for the parenting
plan. The letter stated that it was for settlement purposes only. The general
rule is that evidence of settlement negotiations is not admissible at trial.
See Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 97, 596 A.2d 374
(1991). Thus, the court properly excluded this evidence.
Moreover, with respect to the e-mails, the plaintiff objected to their admis-
sion on the basis of hearsay and pointed out that they were sent from the
defendant to the defendant’s attorney. The following colloquy took place
between the court and the defendant:
‘‘The Court: . . . I don’t want you to inadvertently waive the attorney-
client privilege.
‘‘[The Defendant]: I understand.
‘‘The Court: So, perhaps you can get in the gist of that through your own
testimony too.
‘‘[The Defendant]: Absolutely. So, just initially starting with the e-mail of
6/22/14. There’s some question about whether or not I had objected prior
to the children starting school in St. John and Paul. And it says, I have no
idea where the children are currently living, etc. With regard to schooling
next year, I have no idea which schools the children are going to.’’
From the record, it is not clear that the court precluded the defendant
from presenting evidence of the e-mails. Rather, upon learning that he risked
waiving his attorney-client privilege, the defendant did not offer the e-mails
into evidence. However, even assuming that the court improperly excluded
the defendant’s evidence, the defendant has failed to demonstrate harm.
See Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 158,
971 A.2d 676 (2009) (‘‘[e]ven if a court has acted improperly in connection
with the introduction of evidence, reversal of a judgment is not necessarily
mandated because there must not only be an evidentiary [impropriety], there
also must be harm’’ [internal quotation marks omitted]); see also Lovetere
v. Cole, 118 Conn. App. 680, 682, 984 A.2d 1171 (2009) (‘‘[i]n the absence of
a showing that the [excluded] evidence would have affected the final result,
its exclusion is harmless’’ [internal quotation marks omitted]). The defendant
testified about the content of the e-mails. Thus, he has failed to show that
admission of the e-mail correspondence would have affected the court’s
judgment.
11
General Statutes § 46b–81 (c) provides in relevant part: ‘‘In fixing the
nature and value of the property, if any, to be assigned, the court, after
considering all the evidence presented by each party, shall consider the
. . . liabilities and needs of each of the parties . . . .’’
12
Typically, division of marital assets and liabilities occur at the time the
court renders the dissolution judgment. Recent appellate case law, however,
illustrates some degree of flexibility in deviating from this historical practice.
See Reinke v. Sing, 328 Conn. 376, 393, 179 A.3d 769 (2018) (concluding
that trial court had statutory authority to entertain and determine plaintiff’s
claim seeking modification of dissolution judgment where parties submitted
issue to court, postdissolution, by agreement). Before Reinke, in Smith v.
Smith, 249 Conn. 265, 274–76, 752 A.2d 1023 (1999), our Supreme Court,
citing its ‘‘policy favoring finality of lump sum alimony and property awards,’’
concluded that a trial court no longer retained jurisdiction, after a dissolution
judgment, to divide a party’s interest in a family trust if the party was found,
in the future, to hold such an interest. We recognize that Smith, in addition
to being factually distinguishable from the present case, is no longer good
law to the extent that it is inconsistent with the court’s recent decision
in Reinke.
We view the present case, where the parties agreed, at the time of their
dissolution, to defer resolution of their child related financial issues, as a
logical extension of Reinke, where the parties agreed, postdissolution, to
modify the division of their property. The present case, however, unlike
Reinke, does not involve the redistribution of assets and did not require the
court to open the judgment of dissolution. Thus, the court here did not need
to be presented with a postdissolution agreement of the parties in order to
effectuate the division of their marital liability because the parties specifi-
cally agreed, at the time of the dissolution, to reserve adjudication of child
related financial issues. We therefore see no legal impediment to the court’s
authority to allocate the marital tuition debt for the 2015–2016 academic year.
13
The defendant also argues that the court improperly granted the plain-
tiff’s motion for contempt because it failed to comply with the requirements
of Practice Book § 25-27. This argument was not made before the trial court,
and, therefore, we decline to review it for the first time on appeal. See
Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006) (‘‘[W]e will
not decide an appeal on an issue that was not raised before the trial court.
. . . To review claims articulated for the first time on appeal and not raised
before the trial court would be nothing more than a trial by ambuscade of
the trial judge.’’ [Internal quotation marks omitted.]).
In addition, with respect to the court’s award of attorney’s fees, the
defendant argues that ‘‘[b]ecause of the errors of the court . . . [he] is not
in contempt and . . . should not be liable for plaintiff’s fees.’’ His argument
that the court improperly awarded attorney’s fees necessarily depends on
a determination that the court abused its discretion when it found him in
contempt. Because we conclude that the court did not abuse its discretion
in finding the defendant in contempt, we also conclude that the court did
not abuse its discretion when it awarded attorney’s fees under § 46b-87. See
Allen v. Allen, 134 Conn. App. 486, 502–503, 39 A.3d 1190 (2012) (‘‘Our law
for awarding attorney’s fees in contempt proceedings is clear. [Section] 46b-
87 provides that the court may award attorney’s fees to the prevailing party
in a contempt proceeding. The award of attorney’s fees in contempt proceed-
ings is within the discretion of the court.’’ [Internal quotation marks
omitted.]).
Lastly, the defendant argues that the court’s order improperly prohibits
him from hiring counsel on appeal. The defendant’s argument, in its entirety,
states: ‘‘Not only does the defendant lack the financial ability to satisfy the
orders of the court . . . and to engage counsel but in addition, should the
defendant have funds, is prohibited from using them to [engage] counsel
for his defense, as he would then be deemed in willful contempt of the
current orders.’’ This argument finds no support in the record. Neither the
court’s July 17, 2017 ruling on the plaintiff’s motion for an order nor the
court’s February 5, 2018 finding of contempt provides a basis for the defen-
dant’s assertion that he would have been held in contempt if he had hired
counsel to represent him on appeal. Accordingly, the defendant’s argu-
ment fails.