Barber v. Barber ( 2019 )

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VIRGINIA CHA BARBER v. ATIIM
KIAMBU BARBER
(AC 39755)
Lavine, Prescott and Elgo, Js.
Syllabus
The defendant filed a motion to modify an award of child support that had
been issued in connection with a foreign judgment of dissolution. He
sought a downward modification of his child support obligations, claim-
ing that there had been a substantial change in his and the plaintiff’s
financial circumstances. In support of his motion, the defendant cited
statutes from Connecticut (§ 46b-86) and New York (N.Y. Dom. Rel.
Law § 236 [B] [9] [b] [2] [i]), both of which permit modification of a child
support order upon demonstration by the moving party of a substantial
change in the financial circumstances of either party. Following the
dissolution, the plaintiff moved from New York to Connecticut with
the parties’ four children, and the defendant moved to New Jersey. In
response to the motion to modify, the plaintiff filed a motion for an
order requesting the trial court to find that the New York child support
guidelines applied to the defendant’s motion. Prior to the dissolution of
their marriage, the parties had entered a detailed separation agreement,
which was incorporated into the dissolution judgment, provided that it
was to be construed pursuant to New York law and required that the
defendant pay the plaintiff basic child support and add-on child support.
The agreement also contained a default provision, which provided, inter
alia, that if a party failed to perform his or her obligations under the
agreement, the aggrieved party could bring an action to enforce his or
her rights, and if that action was successful, the defaulting party was
liable for the aggrieved party’s reasonable attorney’s fees and litigation
costs. The trial court granted the plaintiff’s motion for order, concluding
that the substantive law of New York applied to the defendant’s motion
to modify. Thereafter, the plaintiff filed a motion for contempt regarding
the children’s add-on expenses, a motion for attorney’s fees and costs,
and a motion for contempt regarding the defendant’s alleged failure to
pay his basic child support obligation. Following a hearing, the trial
court, applying New York law, denied the defendant’s motion to modify
and the plaintiff’s motions for contempt and for attorney’s fees and
costs. In denying the motion for contempt regarding child support, the
court found that the precise amount of basic child support that the
defendant owed the plaintiff was not entirely clear and unambiguous,
and, therefore, it issued an order directing the parties to follow the
procedure set forth in their agreement for resolving child support dis-
putes, whereby they are to have their accountants discuss and try to
reconcile any discrepancies before the parties resort to judicial interven-
tion. Specifically, it ordered that the parties direct their accountants to
utilize the New York child support guidelines formula, as well as the
precise illustrations contained in relevant paragraphs of the agreement,
including the use of adjusted gross income as shown on the parties’
income tax returns, when making their child support calculations. On
the plaintiff’s appeal and the defendant’s cross appeal to this court, held:
1. The plaintiff could not prevail on her claim that the trial court improperly
rewrote the parties’ agreement by issuing its order with respect to the
manner in which the parties were to proceed to resolve their dispute
regarding basic child support, including how to calculate the amount
of basic child support the defendant owed her: the trial court, by issuing
its order, did not rewrite the agreement but, instead, sought to facilitate
its enforcement by providing the parties with a timeline for exchanging
information as required by the agreement, and the order was necessary
to narrow the issues in dispute at any future hearing, as the court ordered
the parties, who appeared unable or unwilling to abide by the clear
requirements of their agreement, to do what they should have done
before the plaintiff filed her motion for contempt, and the court’s inclu-
sion of the term adjusted gross income in its order did not rewrite the
agreement because that term was incorporated, by way of example as
to how the defendant’s basic child support obligation was to be calcu-
lated, in the agreement that became part of the New York judgment of
dissolution; furthermore, the plaintiff did not demonstrate that she was
harmed by the court’s order, as the objective of the order was to have
the parties and their accountants reach an agreement regarding the
defendant’s basic child support obligation, and, if they could agree, there
would be no need for the parties to seek judicial intervention.
2. The record was inadequate to review the plaintiff’s claim that the trial
court erred by failing to award her attorney’s fees and costs to defend
against the defendant’s attempt to invalidate the agreement with respect
to the law applicable to his motion to modify his child support obliga-
tions, as that court did not provide a factual or legal analysis of its
denial of the plaintiff’s motion for attorney’s fees and costs, and this
court would not speculate as to the reasons for the trial court’s determi-
nation or what conduct of the parties it considered.
3. The trial court did not err by failing to award the plaintiff attorney’s fees
pursuant to the default provision of the parties’ agreement: contrary to
the plaintiff’s claim, her motion for contempt regarding the children’s
add-on expenses was not successful, as she failed to obtain all of the
add-on expenses she was seeking, and the court found that there was
a good faith dispute between the parties regarding the amount the
defendant owed the plaintiff, who failed to prove all of the allegations
in her motion; moreover, the plaintiff’s allegation that the defendant
was in wilful and intentional violation of the agreement was a legal
conclusion, neither party was in full compliance with the agreement,
there was no evidence that the defendant was unwilling to pay what
he owed and, in fact, he proposed a settlement and had a good faith
reason not to pay some of the claimed expenses upon request, and the
fact that the defendant offered to pay what he owed, not what was
demanded of him during the litigation, should not result in his having
to pay the plaintiff attorney’s fees to have a court resolve disputes that
the parties should have been able to resolve given that the add-on
expenses and conditions were clearly spelled out in the agreement.
4. The defendant’s claim on cross appeal that because he had registered
the New York dissolution judgment in Connecticut pursuant to the
applicable statute (§ 46b-71), the trial court improperly concluded that
New York law, rather than Connecticut law, applied to the motion to
modify was dismissed as moot; because the standard for modification
of a child support order under both New York and Connecticut law is
a substantial change in circumstances, the result would have been the
same whether the court had applied New York or Connecticut law,
and, therefore, there was no practical relief that could be afforded to
the parties.
Argued January 17—officially released October 1, 2019
Procedural History
Motion by the defendant for modification of child
support issued in connection with a foreign judgment
of dissolution, brought to the Superior Court in the
judicial district of Stamford-Norwalk, where the court,
Tindill, J., granted the plaintiff’s motion for order;
thereafter, the court, Colin, J., denied the defendant’s
motion to modify child support and the plaintiff’s
motions for contempt and for attorney’s fees and costs,
and issued certain orders, and the plaintiff appealed
and the defendant cross appealed to this court.
Affirmed; cross appeal dismissed.
Sarah E. Murray, with whom was Christopher
DeMattie, for the appellant-cross appellee (plaintiff).
Yakov Pyetranker, for the appellee-cross appellant,
(defendant).
Opinion
LAVINE, J. This postdissolution appeal arises out of
motions filed by the plaintiff, Virginia Cha Barber, and
the defendant, Atiim Kiambu Barber, regarding the child
support provisions of their separation agreement
(agreement), which was incorporated into their New
York divorce decree. On appeal, the plaintiff claims that
the trial court, Colin, J., erred by (1) ‘‘rewriting’’ the
agreement with respect to the manner in which the
defendant’s child support obligation is to be calculated
and (2) failing to award her attorney’s fees and costs
to oppose the defendant’s unsuccessful attempt to inval-
idate a provision of the agreement and to enforce the
agreement’s default provision regarding add-on child
support. On cross appeal, the defendant claims that the
trial court, Tindill, J., erred by concluding that the
substantive law of New York applied to his motion to
modify child support. We affirm the judgments of the
trial court with respect to the plaintiff’s appeal and
dismiss the defendant’s cross appeal.
The following facts and procedural history are rele-
vant to our resolution of the parties’ appeals. On April
3, 2012, prior to the dissolution of their marriage, the
parties entered into a highly detailed, sixty-page agree-
ment,1 which provides that it is to be construed pursuant
to New York law.2 On June 23, 2012, the Supreme Court
of New York, county of New York, dissolved the parties’
marriage and incorporated the agreement into the disso-
lution judgment.
At the time of dissolution, the parties and their four
minor children all lived in New York City.3 Pursuant to
the agreement, the parties have joint legal custody of
their children, although the children primarily reside
with the plaintiff. In 2013, the defendant moved to New
Jersey. The agreement contemplated that the plaintiff
may relocate outside of New York City; in August, 2014,
she and the children moved to Connecticut.
The agreement requires the defendant to pay the
plaintiff basic child support and add-on child support.4
The parties agreed that the defendant should have an
opportunity to rehabilitate his career,5 and, therefore,
he was not required to pay the plaintiff child support
from the date of dissolution through February 28, 2015.6
On February 5, 2015, pursuant to General Statutes § 46b-
71, the defendant registered the New York judgment of
dissolution in the Superior Court.
On February 23, 2015, the defendant filed a ‘‘Motion
for Modification, Postjudgment’’ (motion to modify), in
which he represented that there had been a substantial
change in the parties’ financial circumstances and asked
the trial court to modify downward his child support
obligations. The motion to modify cited General Stat-
utes § 46b-86 (modification permitted upon demonstra-
tion of substantial change in circumstances) and New
York Domestic Relations Law § 236 (B) (9) (b) (2) (i)
(McKinney 2010) (same). In response to the defendant’s
motion to modify, the plaintiff filed a ‘‘Motion for Order
Regarding the Applicable Child Support Guidelines,
Postjudgment’’ (motion for order). On September 21,
2015, the parties appeared at short calendar before
Judge Tindill, who requested supplemental briefing. On
January 12, 2016, the court granted the plaintiff’s motion
for order, concluding that the substantive law of New
York applied to the defendant’s motion to modify. The
court denied the defendant’s motions for articulation
and for reargument. The defendant appealed from
Judge Tindill’s decision, but this court dismissed the
appeal for lack of a final judgment.
On February 1, 2016, the plaintiff filed three motions:
‘‘Motion for Contempt re: Children’s Add-on Expenses,
Postjudgment’’; ‘‘Motion for Order re: Attorney’s Fees
and Expenses, Postjudment’’; and ‘‘Motion for Con-
tempt re: Child Support, Postjudgment.’’ The plaintiff’s
motions and the defendant’s motion to modify were
heard by Judge Colin on September 7 and 8, 2016.
Although the defendant continued to disagree with
Judge Tindill’s decision that New York law applied to
the motion to modify, during the hearing on the motion
to modify he accepted Judge Colin’s position that the
court was bound by Judge Tindill’s decision, which was
the law of the case.7 The plaintiff and the defendant
agreed that the standard for modification of child sup-
port is the same under Connecticut and New York law,
namely, that the moving party must prove a substantial
change in circumstances. On September 19, 2016, Judge
Colin denied the defendant’s motion to modify and the
plaintiff’s motions for contempt and for attorney’s fees
and costs. On October 28, 2016, the plaintiff appealed
from the judgments denying her motions for attorney’s
fees and for contempt regarding the children’s add-
on expenses. Although she did not appeal from the
judgment denying her motion for contempt regarding
child support, the plaintiff claims that in issuing a pro-
spective order related to that motion, the court
‘‘rewrote’’ the agreement. On November 7, 2016, the
defendant filed a cross appeal regarding the choice of
law order issued by Judge Tindill. Additional facts will
be provided as necessary.
In addressing the parties’ appeals, we are guided by
our general standard of review. ‘‘An appellate court’s
review of a trial court decision is circumscribed by the
appropriate standard of review. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) St. Ger-
main v. St. Germain, 135 Conn. App. 329, 333, 41 A.3d
1126 (2012).
I
THE PLAINTIFF’S APPEAL
On appeal, the plaintiff claims that Judge Colin erred
by (1) rewriting the parties’ agreement with respect to
the manner in which the defendant’s basic child support
obligation is to be calculated and (2) failing to award
her attorney’s fees and costs to defend the defendant’s
alleged effort to invalidate a provision of the agreement
and to enforce the default provision of the agreement.
We disagree with the plaintiff’s claims and, therefore,
affirm the judgments of the trial court.
A
The plaintiff first claims that in adjudicating her
motion for contempt regarding child support, the court
issued an order with respect to the manner in which
the parties were to proceed to resolve their dispute
regarding basic child support, namely, how they were
to calculate the amount of basic child support the defen-
dant owes the plaintiff. The plaintiff claims that the
court rewrote the agreement by ordering the parties
to direct their accountants to use the ‘‘adjusted gross
income as shown on the parties’ income tax returns to
calculate the amount of child support each party claims
to be owed . . . .’’ (Internal quotation marks omitted.)
The order constitutes a rewriting of the agreement, the
plaintiff argues, because the agreement requires the
parties to use the New York child support guidelines
formula, not the adjusted gross income shown on the
parties’ tax returns. We disagree that in issuing its order,
the court rewrote the agreement.
The following facts pertain to the plaintiff’s claim
that the court improperly rewrote the agreement by
issuing its order related to the calculation of basic child
support. In the contempt motion, the plaintiff quoted
Article IX, paragraph 2,8 of the agreement concerning
the defendant’s obligation to pay basic child support.
She also quoted Article IX, paragraph 4, of the agree-
ment, which concerns how the parties are to calculate
the amount of basic child support the defendant owes
the plaintiff for the coming year.9 The plaintiff claimed
that under the terms of, and formula in, the agreement,
the defendant’s child support obligation from March 1,
2015 to February 29, 2016, was $8148.24 per month, or
$97,778.88 for the year. The plaintiff alleged that the
defendant had paid only $42,159.96 for the year and,
therefore, owed her $55,618.91. She alleged that the
defendant had violated the agreement wilfully and
intentionally, and, therefore, she was compelled to
incur legal fees and costs to enforce the defendant’s
basic child support obligation. She also alleged that
pursuant to Article XXXI of the agreement, she was
entitled to attorney’s fees and expenses if she prevailed
on the motion. She asked the court to hold the defen-
dant in contempt and to order him to pay her $55,618.92
immediately, and to pay her reasonable attorney’s fees
and costs associated with the motion for contempt.
Judge Colin denied the plaintiff’s motion for con-
tempt and issued an order to facilitate the resolution
of the dispute between the parties. In its order, the
court stated that the motion involves a claim by the
plaintiff that the defendant is in contempt of his basic
periodic percentage based child support obligation. The
court found that the original basic child support order
contains a somewhat complicated income based for-
mula and contemplates that there may be future dis-
agreement between the parties as to the exact amount
of child support the defendant is to pay the plaintiff.
The agreement specifically provides that ‘‘[i]f the parties
cannot agree on the amount of basic child support that
the [defendant] will pay for the upcoming twelve month
period, the [defendant] will pay at least that support
that he deems appropriate and the [plaintiff] will accept
same without waiving any of her rights and may seek
judicial intervention . . . .’’ The court further found
that the agreement ‘‘expressly contemplates that in the
event of a dispute, the parties’ respective accountants
shall discuss [the issues] and, if they are still unable to
agree, either party may seek [judicial intervention].’’
(Internal quotation marks omitted.)
The court found that ‘‘the precise amount of the pay-
ment order is not entirely clear and unambiguous
. . . .’’ Of particular significance to the present issue
is the court’s finding that there was no evidence that
before they sought judicial intervention, the parties had
fulfilled the agreement’s condition precedent that their
accountants discuss the issues in dispute. The court,
therefore, issued the order of which the plaintiff com-
plains.
The court ordered that, within thirty days, the plaintiff
was to deliver to the defendant a computation prepared
by her accountant of the amount that she claims is
owed to her by way of periodic, basic child support.
Within sixty days, the defendant is to deliver to the
plaintiff a computation prepared by his accountant of
the amount that he believes he owes the plaintiff. The
court directed the parties ‘‘to instruct their accountants,
as per the previous ruling of Judge Tindill, to utilize
the New York child support guidelines formula in gen-
eral, and the precise illustrations contained in para-
graph 7 on pages 16 and 17 of their [agreement] in
particular (including the use of adjusted gross income
as shown on the parties’ income tax returns as per
paragraphs 7 (a) and (b) on pages 16 and 17 of the
[agreement]), in order to prepare the necessary calcu-
lations.’’
The court noted that the plaintiff’s computation of
her income for use in the child support calculation was
not consistent with the adjusted gross income shown
on her income tax returns and that the plaintiff did not
adequately explain the discrepancy. The court stated
that perhaps the discrepancy ‘‘can be addressed by the
accountants during their discussions . . . [and] [t]he
amount of the claimed arrearage shall also be discussed
between the accountants as contemplated by the lan-
guage of the order quoted above.’’ The defendant was
to pay any agreed on arrearage no later than March 1,
2017. If a dispute exists after the parties conclude the
steps the court referenced in its order, either party may
file a motion for order that will be heard by the court.
In light of the language of the current New York child
support order and the evidence presented at the hearing
on September 7 and 8, 2016, the court concluded that
its order was necessary to insure full compliance with
the New York court orders and to narrow the issues in
the dispute at any future hearing.
The plaintiff’s claim requires us to determine
whether, in adjudicating the plaintiff’s motion for con-
tempt, the court rewrote the agreement when it deter-
mined the path the parties were to follow to resolve
their dispute as to the amount of child support the
defendant owed the plaintiff. Pursuant to our de novo
review, we conclude that the court did not rewrite
the agreement.
‘‘The law of judgments . . . is well settled. The con-
struction of a judgment is a question of law with the
determinative factor being the intent of the court as
gathered from all parts of the judgment. . . . As a gen-
eral rule, the court should construe [a] judgment as it
would construe any document or written contract in
evidence before it. . . . Effect must be given to that
which is clearly implied as well as to that which is
expressed. . . . If faced with . . . an ambiguity, we
construe the court’s decision to support, rather than to
undermine, its judgment. . . . The judgment should
admit of a consistent construction as a whole. . . . To
determine the meaning of a judgment, we must ascer-
tain the intent of the court from the language used and,
if necessary, the surrounding circumstances. . . . We
review such questions of law de novo. . . . Addition-
ally, our appellate courts do not presume error on the
part of the trial court. . . . Rather, we presume that
the trial court, in rendering its judgment . . . under-
took the proper analysis of the law and the facts.’’ (Cita-
tions omitted; internal quotation marks omitted.) Rogan
v. Rungee, 165 Conn. App. 209, 223, 140 A.3d 979 (2016).
Our review of Judge Colin’s September 19, 2016 deci-
sion discloses that the court was well aware of the
parties’ dissolution judgment, including the child sup-
port provisions in the agreement. It also was aware that
Judge Tindill had ordered that New York law was to
be applied to the calculation of the defendant’s basic
child support obligation. The court found that the par-
ties agreed to a complicated income based formula
and that they contemplated that there may be future
disagreement about the amount of basic child support.
The court further found that the agreement addresses
how the parties were to reconcile any disagreement
regarding the amount of basic child support the defen-
dant owed the plaintiff for the coming twelve months.
In fact, the court quoted paragraph 3 of the relevant
article of the agreement, i.e., the parties’ ‘‘respective
accountants shall discuss same and if they are still
unable to agree either party may seek [judicial interven-
tion].’’ (Internal quotation marks omitted.) The court
found that the precise amount of the payment order
was not entirely clear and unambiguous. Most signifi-
cantly, the court found no evidence that before they
sought judicial intervention, the parties fulfilled the con-
dition precedent to have their respective accountants
discuss discrepancies and come to an agreed on sum,
if possible.10 The court’s finding that the parties failed
to abide by their agreement to resolve child support
disputes themselves before resorting to judicial inter-
vention is the genesis of the court’s order.
Rather than rewriting the agreement, the court’s
order seeks to facilitate its enforcement by providing
the parties with a timeline for exchanging information
as required by the agreement. The parties are to instruct
their accountants, ‘‘as per the previous ruling of Judge
Tindill, to utilize the New York child support guidelines
formula in general, and the precise illustrations con-
tained in paragraph 7 on pages 16 and 17 of their [agree-
ment] in particular (including the use of adjusted gross
income . . .), in order to prepare the necessary calcula-
tions.’’ The parties’ accountants are to discuss the
claimed arrearage as contemplated by the court’s order.
The court stated that to insure full compliance with the
current court order, its order was necessary given the
evidence presented to the court on September 6 and 7,
2016, and the current New York child support order.
Moreover, the order was necessary to narrow the issues
in dispute at any future hearing. In other words, the
court ordered the parties, who appeared unable or
unwilling to abide by the clear requirements of their
agreement, to do what they should have done before
the plaintiff filed her motion for contempt. We also
conclude that the court’s including the term ‘‘adjusted
gross income’’ in its order did not rewrite the agreement
because the term is incorporated, by way of example
as to how the defendant’s basic child support obligation
was to be calculated, in the agreement that became
part of the New York judgment of dissolution.11
Moreover, the plaintiff has not demonstrated that she
was harmed by the court’s order. As the court stated,
the parties were to provide their respective accountants
with the relevant financial information, and they were
to meet and resolve any differences using the New York
child support guidelines. The objective of the court’s
order is to have the accountants and the parties reach
an agreement regarding the defendant’s basic child sup-
port obligation. If they can agree, there is no need for
the parties to seek judicial intervention.
For the foregoing reasons, we conclude that the court
did not rewrite the agreement. The plaintiff’s claim,
therefore, fails.
B
The plaintiff also claims that the court erred by failing
to award her attorney’s fees and costs (1) to oppose
the defendant’s unsuccessful effort to invalidate a provi-
sion of the agreement and (2) to enforce the agreement’s
default provision regarding add-on child support. The
essence of the plaintiff’s claims is that when the court
adjudicated her motions for contempt and for attorney’s
fees and costs, it applied the wrong legal standard and
failed to enforce the parties’ agreement because the
defendant breached the agreement. We disagree that
the court erred in declining to award the plaintiff attor-
ney’s fees and costs.
Generally, we apply the abuse of discretion standard
when reviewing a trial court’s decision to deny an award
of attorney’s fees. ‘‘Under the abuse of discretion stan-
dard of review, [w]e will make every reasonable pre-
sumption 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 conclu-
sion that it did.’’ (Citation omitted; internal quotation
marks omitted.) Munro v. Munoz, 146 Conn. App. 853,
858, 81 A.3d 252 (2013).
‘‘The general rule of law known as the American rule
is that attorney’s fees and ordinary expense and burdens
of litigation are not allowed to the successful party
absent a contractual or statutory exception. . . . This
rule is generally followed throughout the country. . . .
Connecticut adheres to the American rule. . . . There
are few exceptions. For example, a specific contractual
term may provide for the recovery of attorney’s fees
and costs . . . or a statute may confer such rights.’’
(Internal quotation marks omitted.) Giordano v. Gior-
dano, 153 Conn. App. 343, 352–53, 101 A.3d 327 (2014).
‘‘Because a stipulation is considered a contract, [o]ur
interpretation of a separation agreement that is incorpo-
rated into a dissolution decree is guided by the general
principles governing the construction of contracts. . . .
Thus, if there is definitive contract language, the deter-
mination of what the parties intended by their . . .
commitments is a question of law [over which our
review is plenary].’’ (Citation omitted; internal quota-
tion marks omitted.) Ahmadi v. Ahmadi, 294 Conn.
384, 390, 985 A.2d 319 (2009).
1
The plaintiff first claims that the court erred by failing
to enforce the agreement when it denied her attorney’s
fees and costs to defend against the defendant’s attempt
to invalidate the agreement with respect to the law
applicable to the defendant’s motion to modify child
support. The plaintiff’s claim fails because the record
is inadequate for our review.
The following facts are relevant to the plaintiff’s
claim. On February 23, 2015, the defendant filed a
motion to modify in which he recited the relevant por-
tions of the parties’ agreement regarding basic child
support, namely, Article IX, paragraph 2. He claimed
that his income had decreased and his expenses had
increased and that the plaintiff’s income had increased
and her expenses had decreased. The motion contained
no reference to the substantive law to be applied to the
motion to modify nor did it request a change in the
agreement regarding the controlling law.
On February 1, 2016, the plaintiff filed a ‘‘Motion for
Order re: Attorney’s Fees and Expenses, Postjudg-
ment.’’ She predicated the motion on Article XXXI, para-
graph 4, of the agreement and highlighted the following
language of the paragraph: ‘‘If either party by any action
. . . seeks to . . . declare any of [the agreement’s]
terms and conditions as invalid . . . said party . . .
shall reimburse the other party and be liable for any
and all such party’s reasonable attorney[’s] fees and
expenses . . . .’’12 In the motion for attorney’s fees and
costs, the plaintiff states that on February 23, 2015, the
defendant filed the motion to modify that ‘‘attempts to
declare some of the [dissolution] judgment’s terms and
conditions invalid and apply Connecticut law since his
child support obligation would be significantly lower
if the Connecticut child support guidelines were
applied.’’13 She alleged that the defendant had refused
to abide by the terms of the New York judgment, and,
therefore, she was forced to file a motion for order to
enforce the judgment, specifically, that the trial court
should apply the New York child support guidelines.
The plaintiff further represented that the defendant had
opposed the motion for order and that Judge Tindill
heard lengthy arguments from counsel and ordered sup-
plemental briefing on the issue. On January 12, 2016,
Judge Tindill ruled on the motion for order, concluding
that New York law applies to the basic child support
order. The plaintiff alleged that the defendant’s actions,
proceedings, and/or defenses resulted in a decision
rejecting his claims, and, therefore, pursuant to Article
XXXI, paragraph 4, of the agreement, the defendant
‘‘shall reimburse the plaintiff and be liable for any and
all of her reasonable attorney’s fees and expenses.’’ The
plaintiff alleged that she had incurred approximately
$36,000 in attorney’s fees and expenses with respect to
the motion to modify.
Judge Colin denied the motion for attorney’s fees and
expenses stating that the ‘‘plaintiff has failed to prove
that the defendant’s filing and prosecution of an unsuc-
cessful motion for modification of child support is tanta-
mount to an action that seeks to vacate or set aside
the parties’ dissolution agreement, or constitutes an
effort to declare any of its terms invalid, such that
she is entitled to legal fees pursuant to Article XXXI,
paragraph 4, of the [agreement]. As a result, the motion
is denied.’’
On October 7, 2016, the plaintiff filed a motion for
reconsideration of her motions for contempt and for
attorney’s fees with respect to (1) enforcing the add-
on child support provision of the agreement and (2)
the motion to modify and her motion for order. She
claimed that she was successful in enforcing the add-
on child support provision of the agreement because
the court ordered the defendant to pay her $36,954.73
of the disputed amount. With respect to the default
provision of the agreement, the plaintiff argued that, in
the motion to modify, the defendant ‘‘sought to declare
the [New York] judgment’s terms and conditions invalid
by arguing that the Connecticut child support guide-
lines, not the New York child support guidelines, should
apply to any modification of his child support obliga-
tion.’’14 In order to defend the choice of law provision
in the agreement, the plaintiff represented that she filed
a motion for order pursuant to the default provision of
the agreement. She sought to enforce the terms of the
New York judgment, specifically, that the court should
apply the New York child support guidelines. She also
recounted the procedural history of the motion to mod-
ify before Judge Tindill. The court denied the plaintiff’s
motion for reconsideration without explanation. The
plaintiff took no further action prior to filing the pres-
ent appeal.
On appeal, the plaintiff claims that the court erred
in failing to award her attorney’s fees and costs because
the defendant was unsuccessful in his effort to invali-
date the parties’ agreement by arguing that Connecti-
cut’s child support guidelines should apply to his motion
to modify. In response, the defendant argues, in part,
that the court properly denied the plaintiff’s motion for
attorney’s fees and costs by concluding that the motion
to modify was not tantamount to an action to vacate
or set aside the agreement. He notes that the word
‘‘modify’’ does not mean to vacate, set aside, invalidate,
or void, and that the word modify is not included in
paragraph 4 of Article XXXI of the agreement. We agree
with the defendant.
‘‘An agreement between divorced parties . . . that
is incorporated into a dissolution decree should be
regarded as a contract. . . . In interpreting contract
items, we have repeatedly stated that the intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and that the language
used must be accorded its common, natural, and ordi-
nary meaning and usage where it can be sensibly applied
to the subject matter of the contract. . . . Where the
language of the contract is clear and unambiguous, the
contract is to be given effect according to its terms. A
court will not torture words to import ambiguity where
the ordinary meaning leaves no room for ambiguity
and words do not become ambiguous simply because
lawyers or laymen contend for different meanings. . . .
[Where] . . . there is clear and definitive contract lan-
guage, the scope and meaning of that language is not
a question of fact but a question of law. . . . In such
a situation our scope of review is plenary, and is not
limited by the clearly erroneous standard.’’ (Citations
omitted; internal quotation marks omitted.) Breiter v.
Breiter, 80 Conn. App. 332, 336–37, 835 A.2d 111 (2003).
The United States Supreme Court has stated that
‘‘[v]irtually every dictionary we are aware of says that
to modify means to change moderately or in minor
fashion.’’ (Internal quotation marks omitted.) MCI Tele-
communications Corp. v. American Telephone & Tele-
graph Co., 512 U.S. 218, 225, 114 S. Ct. 2223, 129 L. Ed.
2d 182 (1994). ‘‘A modification is defined as [a] change;
an alteration or amendment which introduces new ele-
ments into the details, or cancels some of them, but
leaves the general purpose and effect of the subject
matter intact.’’ (Internal quotation marks omitted.)
Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790(1995). Conversely, to vacate means to ‘‘annul; to set
aside; to cancel or rescind. To render an act void; as,
to vacate an entry of record, or a judgment.’’ Black’s
Law Dictionary (5th Ed. 1979).
Our review of the motion to modify discloses that the
defendant represented that there had been a substantial
change in the parties’ circumstances; he asked that his
child support obligation be modified downward. He
wanted to pay less, not to have his entire child support
obligation eliminated or voided. We, therefore, agree
with the trial court that filing and prosecuting an unsuc-
cessful motion to modify is not tantamount to, or the
same as, an action that seeks to vacate or set aside the
parties’ agreement. Moreover, the New York dissolution
judgment specifically provides that the parties may file
a motion for modification if there is a substantial change
of circumstances.15
The plaintiff’s issue on appeal is that Judge Colin
erred by failing to award her attorney’s fees for success-
fully ‘‘defend[ing] against the defendant’s attempts to
invalidate the parties’ [agreement] with respect to what
law applied to his child support modification . . . .’’
In denying the plaintiff’s motion for attorney’s fees and
costs, the court stated that ‘‘[t]he plaintiff failed to prove
that the defendant’s filing and prosecution of an unsuc-
cessful motion for modification of child support is tanta-
mount to an action that seeks to vacate or set aside the
parties’ dissolution agreement or constitutes an effort
to declare any of its terms invalid . . . . .’’ The court
did not provide a factual or legal analysis of its denial
of the plaintiff’s motion for attorney’s fees and costs.
We will not speculate as to the reasons for the court’s
determination or what conduct of the parties it consid-
ered. See Hane v. Hane, 158 Conn. App. 167, 174 n.9,
118 A.3d 685 (2015). We, however, note that the court
found that the defendant’s motion to modify was unsuc-
cessful, not that the plaintiff successfully defended the
choice of law provision of the agreement. The record,
therefore, is inadequate for our review.
2
The plaintiff also claims that the court erred by failing
to award her attorney’s fees pursuant to the default
provision of the agreement. We disagree.
On February 1, 2016, the plaintiff filed a ‘‘Motion for
Contempt re: Children’s Add-On Expenses, Postjudg-
ment’’ (motion for contempt). In the motion for con-
tempt, the plaintiff represented that the judgment of
dissolution required the defendant to pay 75 percent of
the children’s health care expenses,16 $2500 per calen-
dar year for each child’s agreed on summer activities,
$2500 for each of the twins to attend nursery school,
50 percent of the children’s tutoring expenses, and 50
percent of the children’s extracurricular activities, not
to exceed $10,000 for the children per school year. The
motion for contempt also set forth the provisions of
paragraphs 1, 2, and 3 of Article XXXI of the agreement,17
which, in summary, provide that if a party fails to per-
form, the aggrieved party shall notify the defaulting
party who has ten days in which to cure the default. If
the defaulting party does not cure, the aggrieved party
may bring an action to enforce his or her rights. If the
aggrieved party’s action is successful, the defaulting
party shall become liable to the aggrieved party for
reasonable attorney’s fees and expenses. If an action
is commenced and the defaulting party complies with
the agreement before judgment is rendered, the action
shall be deemed to have resulted in a judgment in favor
of the aggrieved party.
The plaintiff further represented that she sent the
defendant numerous letters with supporting documents
on various dates between August 22, 2012 and Decem-
ber 3, 2015, notifying him of past due add-on child
support expenses. She claimed that as of December 31,
2015, the defendant’s share of the children’s total add-
on expenses was $73,418.55 and that he had paid only
$35,455.62. The plaintiff alleged that the defendant wil-
fully and intentionally violated the agreement and that
she was compelled to incur legal fees and costs of
$37,455.62 to enforce the defendant’s child support obli-
gations. She asked that the defendant be held in con-
tempt and ordered to pay her attorney’s fees and
costs immediately.
The court heard argument on the plaintiff’s motion
for contempt on September 7 and 8, 2016, and issued
its order on September 19, 2016. Although the plaintiff
had claimed that the defendant was in contempt of his
obligations under the New York dissolution judgment
for failing to pay certain child related expenses, the
court found that the plaintiff had ‘‘failed to prove by
clear and convincing evidence that the defendant had
wilfully and intentionally violated a clear and unambigu-
ous court order.’’18 The court also found that there was
a good faith dispute as to a number of the expense
items. The plaintiff, by her own admission, mistakenly
asked for reimbursement for expenses to which she
was not entitled, such as babysitter expenses when she
was not gainfully employed. In addition, the court found
that the defendant ‘‘may have made some payments
directly to certain vendors that may or may not be
included as part of the plaintiff’s claim.’’ For those rea-
sons, the court stated that ‘‘no contempt finding shall
enter and no costs or counsel fees shall be awarded.’’
With respect to the amount of money the defendant
owed the plaintiff for outstanding add-on expenses, the
court found that the defendant was more credible than
the plaintiff. Therefore, in accordance with the pro-
posed order submitted by the defendant, the court
ordered him to pay the plaintiff $36,954.73.19 The court
rejected the defendant’s claim that he was entitled to
a 50 percent discount for some of the expenses because
he had not consented to them, as there was no factual
or legal basis for such a claim. The court denied the
plaintiff’s motion for reconsideration.
On appeal, the plaintiff acknowledges that, in the
motion for contempt, she asked the court to find the
defendant in contempt for wilfully and intentionally
violating the agreement, and she does not claim that
the court erred when it failed to find the defendant in
contempt. Her argument is that the court erred in that
it likely assumed that it had to find the defendant in
contempt pursuant to General Statutes § 46b-87 in order
to award her attorney’s fees and costs. She argues that
she was entitled to attorney’s fees and costs pursuant
to the agreement, which did not require a finding of
contempt. She argues that the evidence demonstrated
that the defendant was in breach of the add-on child
support provision of the agreement. She underscores
this point by noting that the court ordered the defendant
to pay her $36,954.73, a sum the defendant proposed
because he knew he was indebted to her. The plaintiff
argues that because she prevailed, she was successful
and, therefore, entitled to attorney’s fees and costs.20
The defendant argues that the plaintiff is not entitled
to attorney’s fees and costs because she was ‘‘not suc-
cessful, only partly successful,’’ and did not receive
the full amount of add-on child support that she was
seeking. He also argues that, pursuant to the allegations
of the motion for contempt, the plaintiff set out to prove
that he was in wilful and intentional violation of the
agreement. He notes that the plaintiff conceded such
at the hearing before Judge Colin.
‘‘To impose contempt penalties, whether criminal or
civil, the trial court must make a contempt finding, and
this requires the court to find that the offending party
wilfully violated the court’s order; failure to comply
with an order, alone, will not support a finding of con-
tempt. . . . Rather, to constitute contempt, a party’s
conduct must be wilful . . . . A good faith dispute or
legitimate misunderstanding about the mandates of an
order may well preclude a finding of wilfulness. . . .
Whether a party’s violation was wilful depends on the
circumstances of the particular case and, ultimately, is
a factual question committed to the sound discretion
of the trial court. . . . Without a finding of wilfulness,
a trial court cannot find contempt and, it follows, cannot
impose contempt penalties.’’ (Citations omitted; inter-
nal quotation marks omitted.) O’Brien v. O’Brien, 326
Conn. 81, 98–99, 161 A.3d 1236 (2017).
‘‘[T]he fact that an order has not been complied with
fully does not dictate that a finding of contempt must
enter. . . . A finding of contempt is a question of fact,
and our standard of review is to determine whether the
court abused its discretion in [finding] that the actions
or in actions of the [alleged contemnor] were in con-
tempt of a court order. . . . To constitute contempt,
a party’s conduct must be wilful. . . . Noncompliance
alone will not support a judgment of contempt. . . .
[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 findings to deter-
mine whether they could legally and reasonably be
found, thereby establishing that the trial court could
reasonably have concluded as it did.’’ (Citation omitted;
internal quotation marks omitted.) Aliano v. Aliano,
148 Conn. App. 267, 277, 85 A.3d 33 (2014).
Although the plaintiff claims on appeal that she is
entitled to attorney’s fees and costs pursuant to the
agreement, that is not what she alleged in her motion
for contempt. She alleged that the defendant was in
wilful and intentional violation of the agreement. Her
prayer for relief asked that the defendant be held in
contempt and ordered to pay her $37,455.62.
The court found that there was a good faith dispute
as to a number of expense items because the defendant
may have paid vendors directly that may or may not
be included in the plaintiff’s claim and the plaintiff
conceded that she had requested reimbursement for
babysitting expenses to which she was not entitled
because she was not gainfully employed. Moreover, the
court found the defendant to be more credible than the
plaintiff with respect to the amount outstanding for the
add-on child care expenses.
On the basis of the court’s factual findings, we agree
with the defendant’s contention that the plaintiff’s
motion for contempt was not successful because she
failed to obtain all of the add-on expenses she was
seeking. The court found a good faith dispute between
the parties regarding the amount the defendant owed
the plaintiff. The allegations in the motion for contempt
were just that, allegations, and the plaintiff failed to
prove them all. Also, her allegation that the defendant
was in breach of the agreement was a legal conclusion.
The plaintiff herself breached the agreement by
requesting funds to which she was not entitled, i.e.,
babysitter expenses. Furthermore, the defendant
claimed that he had paid vendors directly for some
expenses. Under the circumstances, it appears that nei-
ther party was in full compliance with the agreement.
In addition, there was no evidence that the defendant
was unwilling to pay what he owed; in fact, he proposed
a settlement. See footnote 17 of this opinion. The court’s
findings disclose that the defendant had a good faith
reason not to pay some of the claimed expenses upon
request. The fact that he offered to pay what he owed,
not what was demanded of him during the litigation,
should not result in his having to pay the plaintiff attor-
ney’s fees to have a court resolve disputes that the
parties should have been able to resolve given that the
add-on child care expenses and conditions are clearly
spelled out in the agreement. There were no compli-
cated questions of law to be decided by the court. For
these reasons, we conclude that the court did not err
in failing to award the plaintiff attorney’s fees and costs.
II
THE DEFENDANT’S CROSS APPEAL
On cross appeal, the defendant claims that because
he had registered the New York dissolution judgment
in Connecticut pursuant to § 46b-71,21 Judge Tindill
improperly concluded that New York law, rather than
Connecticut law, applied to the motion to modify. We
conclude that the standard for modification of a child
support order is a substantial change in circumstances
under both New York and Connecticut law. A substan-
tial change in circumstances is the standard Judge Colin
applied in denying the motion to modify. Thus, irrespec-
tive of which state’s law applies, there is no practical
relief that we can grant the defendant. The cross appeal,
therefore, is moot and must be dismissed.
We briefly review the procedural history underlying
the cross appeal. On February 23, 2015, the defendant
filed a motion to modify, in which he represented that
since the time of dissolution, he had moved to New
Jersey and that the plaintiff and the parties’ children
had relocated to Connecticut. The defendant set forth
the basic child support, as well as the add-on child
support he had been ordered to pay the plaintiff. The
defendant claimed that there had been a substantial
change in circumstances due to a reduction in his
income and an increase in his expenses coupled with
the plaintiff’s increase in income and reduction in
expenses. In support of his motion, he cited § 46b-86
(substantial change in circumstances) and New York
Domestic Relations Law § 236 (B) (9) (b) (2) (i) (McKin-
ney 2010) (same). He asked the court to modify down-
ward or otherwise reduce his child support and add-
on support obligations.
On July 23, 2015, in response to the motion to modify,
the plaintiff filed a motion for order asking the court
to find that child support guidelines are substantive in
nature and, therefore, that the New York child support
guidelines apply to the defendant’s motion to modify.
In support of her motion for order, the plaintiff cited
§ 46b-71 (b).22 The defendant filed a memorandum of
law in opposition to the plaintiff’s motion for order in
which he argued that Connecticut law applied pursuant
to § 46b-71 and the Uniform Interstate Family Support
Act (uniform act), General Statutes § 46b-212 et seq.
The parties appeared before Judge Tindill at short calen-
dar on September 21, 2015. The court, thereafter,
ordered the parties to submit supplemental briefs.23 The
parties submitted their briefs on October 5, 2015; the
defendant argued that Connecticut substantive law
applied, and the plaintiff argued that New York substan-
tive law applied.
The court issued its ruling on the motion for order
on January 12, 2016, concluding that the Supreme Court
of New York was no longer a court of competent juris-
diction and that there is no conflict among § 46b-71,
the uniform act, and the Full Faith and Credit for Child
Support Orders Act, 28 U.S.C. § 1738B. The court found
that the parties had contemplated that the plaintiff and
the children would move from New York City. The court
concluded that child support guidelines are substantive
in nature and that it must apply the substantive law of
New York, which requires that Connecticut law apply
with respect to the modification of the June 23, 2012
child support order. The court further concluded that
‘‘Connecticut law requires that the New York Child Sup-
port Standards Act . . . as amended [by] the Domestic
Relations Law and Family Court Act of the State of
New York, and the parties’ agreement appl[ied] to any
modification of the June 23, 2012 child support order.’’
On January 27, 2016, the defendant filed a motion for
articulation and a motion to reargue. The court denied
both of the defendant’s motions. The defendant
appealed to this court, but the appeal was dismissed
for lack of a final judgment.
A hearing on the motion to modify was held before
Judge Colin. During the hearing, the parties agreed that
the substantial change of circumstances standard
applied to the motion to modify.24 On September 19,
2016, the court denied the motion to modify. Although
the defendant had alleged that his income had
decreased and his expenses had increased and that the
plaintiff’s income had increased and her expenses had
decreased, the court found, on the basis of the evidence
presented, that the defendant had failed to prove by a
preponderance of the evidence that his income had
decreased, that his expenses had increased or that the
plaintiff’s income had increased. In fact, the court found
that the defendant’s income was greater at the time of
the hearing than it was at the time of dissolution.25 The
court found, however, that the defendant had proved
that the plaintiff’s expenses were reduced substantially
due to her remarriage. Nonetheless, the court con-
cluded that those changes did not warrant a modifica-
tion of the defendant’s child support obligations. The
parties had moved from New York, each to a different
state, and the defendant spends far less parenting time
with the children than the amount of time to which he
is entitled under the existing court orders. Moreover,
concluded the court, the defendant’s basic child support
obligation is percentage based and effectively modifies
itself pursuant to changes in the parties’ incomes.
Finally, the court stated that the percentage, including
‘‘caps,’’ the defendant is obligated to pay the plaintiff
for other child related expenses is still appropriate not-
withstanding the fact that the plaintiff’s remarriage has
resulted in a decrease in her overall expenses.
After the plaintiff appealed from the judgments ren-
dered by Judge Colin on her motions for contempt and
for attorney’s fees and costs, the defendant filed the
present cross appeal in which he claims that Judge
Tindill improperly concluded that the substantive law
of New York applied to his motion to modify, rather than
the Connecticut child support guidelines. In response
to the cross appeal, the plaintiff argues that the cross
appeal should be dismissed on three grounds: (1) the
cross appeal is jurisdictionally defective because it was
not taken from a final judgment;26 (2) it is moot because
Judge Colin denied the motion to modify; and (3) it is
moot because the legal standard for modification of a
child support order is the same in both Connecticut
and New York. We agree with the plaintiff that the cross
appeal is moot because the standard for granting a
motion to modify is the same in New York and Connecti-
cut, such that the parties’ interests are not adverse, and
consequently there is no practical relief that we can
afford the parties. The parties agree that the standard
in both New York and Connecticut is a substantial
change in circumstances. Judge Colin found that there
was no substantial change of circumstances and, there-
fore, denied the motion to modify. Neither party has
taken an appeal from the denial of the motion to modify
on that basis.
‘‘Mootness implicates [the] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a well-settled general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . Because mootness implicates subject matter juris-
diction, it presents a question of law over which our
review is plenary. . . . Mootness presents a circum-
stance wherein the issue before the court has been
resolved or had lost its significance becaue of a change
in the condition or affairs between the parties. . . . A
case is moot when due to intervening circumstances
a controversy between the parties no longer exists.
(Citations omitted; internal quotation marks omitted.)
Sargent v. Sargent, 156 Conn. App. 109, 113–14, 113
A.3d 72 (2015).
The substance of the issue the defendant has raised
on cross appeal is that Judge Colin applied New York
law when he adjudicated the motion to modify because
he was bound by Judge Tindill’s decision on the plain-
tiff’s motion for order that New York law applied. The
defendant’s cross appeal falls short because the stan-
dard for modification in both New York and Connecti-
cut is the same—a substantial change in circumstances.
In denying the motion to modify, Judge Colin found
that the agreement provides that the defendant’s child
support is self-modifying and, more importantly in the
present context, that the defendant failed to prove that
his income has decreased since the time of dissolution.
Moreover, the defendant’s add-on child support was
still appropriate.
Our plenary review of the law regarding a motion to
modify child support confirms that the standard in New
York and Connecticut, as noted, is the same, i.e., a
substantial change of circumstances. ‘‘When a party
seeks to modify the child support provision of a prior
order or judgment, including an order or judgment
incorporating without merging an agreement or stipula-
tion of the parties, he or she must demonstrate a sub-
stantial change in circumstances . . . . It is the burden
of the moving party to establish the change in circum-
stance[s] warranting the modification . . . . In
determining whether there has been a substantial
change in circumstances, the change is measured by
comparing the payor’s financial situation at the time of
the application for a downward modification with that
at the time of the order or judgment . . . . A parent’s
child support obligation is not necessarily determined
by his or her current financial condition, but rather by
his or her ability to provide support . . . as well as his
or her assets and earning power.’’ (Citations omitted;
internal quotation marks omitted.) Malbin v. Martz, 88
App. Div. 3d 715, 716, 930 N.Y.S.2d 67 (2011), citing
N.Y. Dom. Rel. Law § 236 (B) (9) (b) (2) (i) (McKinney
2010); see also Kolodny v. Perlman, 143 App. Div. 3d
818, 820, 38 N.Y.S.3d 613 (2016), citing N.Y. Fam. Ct.
Act § 451 (McKinney 2014).
‘‘When presented with a motion for modification, a
court must first determine whether there has been a
substantial change in the financial circumstances of
one or both of the parties.’’ (Internal quotation marks
omitted.) Coury v. Coury, 161 Conn. App. 271, 282, 128
A.3d 517 (2015). ‘‘To obtain a modification, the moving
party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order. In making such an inquiry, the trial court’s discre-
tion is essential. . . . A conclusion that there has been
a substantial change in financial circumstances justi-
fying a modification . . . based only on income is erro-
neous; rather, the present overall circumstances of the
parties must be compared with the circumstances
existing at the time of the original award to determine if
there has been substantial change.’’ (Internal quotation
marks omitted.) Id., 283.
As stated, our plenary review of the law regarding a
motion to modify child support reveals that the standard
for adjudication of such a motion is the same in both
New York and Connecticut. In the present case, the
defendant does not claim that the court erred in con-
cluding that he had failed to prove that there had been a
substantial change in circumstances to warrant granting
the motion to modify. He argues that Judge Tindill
improperly decided that New York law applied to the
motion to modify, and it thereby became the law of
the case. Judge Tindill’s decision, however, was not
controlling of the issue to be decided by Judge Colin.
Whether Judge Colin had applied New York or Connect-
icut law, the result would have been the same, and,
therefore, there is no practical relief that we can afford
the parties.27 ‘‘If no practical relief can be afforded to
the parties, the appeal must be dismissed.’’ (Internal
quotation marks omitted.) Chase Manhattan Mortgage
Corp. v. Burton, 81 Conn. App. 662, 664, 841 A.2d 248,
cert. denied, 268 Conn. 919, 847 A.2d 313 (2004). We,
therefore, dismiss the cross appeal.
The judgments on the plaintiff’s appeal are affirmed;
the cross appeal is dismissed.
In this opinion the other judges concurred.
1
Within the agreement, the parties refer to the document as ‘‘Stipulation
of Settlement.’’
2
Article XXXVI of the agreement states: ‘‘The Stipulation shall be con-
strued pursuant to the laws of the State of New York.’’
3
The parties’ children were born in 2002, 2004, and 2010 (twins), respec-
tively.
4
The child support add-ons include expenses related but not limited to
health insurance, education, summer camp, child care, and extracurricu-
lar activities.
5
The defendant is a retired professional athlete.
6
Article IX, paragraph 1, of the agreement provides in relevant part: ‘‘Both
parties acknowledge and represent that the [plaintiff] is receiving more than
50 [percent] of the parties’ marital assets under this Agreement because, in
part, it represents a pre-payment of the [defendant’s] basic child support
obligation through February 28, 2015.’’
7
The defendant noted that Judge Colin did not agree that New York law
applied to the motion to modify. During the hearing on the motion to modify,
Judge Colin stated, ‘‘[B]ut couldn’t the other side argue Judge Tindill said
it’s New York law? I don’t agree with her, but that’s what she said.’’ He also
stated: ‘‘Even if I agreed with you now [that Connecticut law applies], we’re
stuck. That’s that law of the case, right?’’
8
Article IX, paragraph 2, of the agreement states in relevant part: ‘‘Com-
mencing on March 1, 2015 and continuing on the first day of each month
thereafter, during the lifetime of the [defendant], during the lifetime of the
[plaintiff], and until the emancipation of a Child . . . the [defendant] shall
pay to the [plaintiff] basic child support in accordance with the formula set
forth in the presently existing [New York Domestic Relations Law] § 240
. . . except that the [defendant’s] basic child support obligation shall not
be less than $3,513.33 per month . . . nor exceed $10,333.33 per month
(based on an income, as defined in the [Child Support Standards Act, N.Y.
Dom. Rel. Law § 240 (McKinney 2010)], of $400,000 per year) . . . . ’’ (Inter-
nal quotation marks omitted.)
9
Article IX, paragraph 4, of the agreement provides in relevant part: ‘‘The
parties shall use their best efforts to calculate the amount of basic child
support that the [defendant] will pay for the upcoming twelve month period,
which commences on March 1st. If the parties cannot agree on the amount
of basic child support that the [defendant] will pay for the upcoming twelve
month period, the [defendant] will pay at least that support that he deems
appropriate and the [plaintiff] will accept same without waiving any of her
rights and may seek judicial intervention . . . .’’
10
The court quoted Article XXVI of the agreement, to wit: ‘‘The [defendant]
and the [plaintiff] at any and all times . . . promptly shall make, execute
and deliver any and all such other further instruments as may be necessary
or desirable for the purpose of giving full force and effect to the provisions
of this [agreement], without charge therefore.’’
In his brief on appeal, the defendant notes internal inconsistencies in the
agreement, particularly with respect to the calculation of basic child support.
At trial, the plaintiff conceded the inconsistencies regarding the calculation
of basic child support, including adjusted gross income.
The plaintiff testified, in part, on cross-examination:
‘‘[The Defendant’s Counsel]: The agreement says two different things,
doesn’t it?
‘‘[The Plaintiff]: I believe so.
‘‘[The Defendant’s Counsel]: And you signed it?
‘‘[The Plaintiff]: Yes.’’
11
Article IX, paragraph 7, of the agreement sets forth the formula used
to calculate the presumptive incomes of the parties. It uses their adjusted
gross income figures as set forth in their 2010 income tax returns.
12
Article XXXI of the agreement is titled ‘‘Default Obligations.’’ Paragraph
4 therein provides: ‘‘If either party by any action, proceeding, defense, coun-
terclaim or otherwise, seeks to vacate or set aside this [agreement], or
declare any of its terms and conditions as invalid, void or against public
policy, by any reason including, but not limited to, fraud, duress, incompe-
tency, overreaching or unconsciounaiblity, said party shall not be entitled
to attorney[’s] fees if the relief sought is denied and shall reimburse the
other party and be liable for any and all such party’s reasonable attorney[’s]
fees and expenses, provided and to the extent that such action, proceeding,
counterclaim or defense results in a decision, judgment, decree or order
dismissing or rejecting said claims.’’
13
We note that the defendant’s motion to modify did not state that the
defendant sought to have some of the dissolution judgment’s terms and
conditions declared invalid and makes no claim that his child support obliga-
tion would be less under Connecticut law.
14
Our review of the motion to modify discloses that the defendant
requested a downward modification of his basic child support obligation.
He did not ask the court to apply Connecticut law. The choice of law issue
was raised by the plaintiff in her motion for order.
15
The first paragraph of the New York judgment of divorce states: ‘‘EACH
PARTY HAS A RIGHT TO SEEK A MODIFICATION OF THE CHILD SUP-
PORT ORDER UPON A SHOWING OF: (I) A SUBSTANTIAL CHANGE IN
CIRCUMSTANCES; 0R (II) THAT THREE YEARS HAVE PASSED SINCE
THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (III)
THERE HAS BEEN A CHANGE IN EITHER PARTY’S GROSS INCOME BY
FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST
MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFI-
CALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARA-
GRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION, AS
HERE, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY.’’
16
Health care included medical, dental, optical, orthodontic, co-pays, phar-
maceutical, psychiatric, psychotherapy, occupational therapy, physical ther-
apy, speech therapy, and audiology expenses not covered by insurance.
17
Article XXXI, titled ‘‘Default Obligations,’’ provides in relevant part: ‘‘1.
All payments are due in accordance with the terms of this [a]greement. The
parties covenant and agree that if in the event it is alleged by either party
that the other has failed to perform, or there has been a lack of performance,
or there has been a breach by the other . . . then the party presumptively
aggrieved shall notify the other party . . . of the default . . . and the other
party shall have ten . . . days, after receipt of such written notice, to cure
such default . . . . In the event the party fails to cure . . . the aggrieved
party . . . may commence such proceedings to enforce his or her rights
with respect to any of the terms of this [a]greement . . . .
‘‘2. The parties covenant . . . that if such legal proceedings are com-
menced, the defaulting party shall become liable to the aggrieved party for
reasonable attorney’s fees and reasonable expenses of litigation in bringing
on such proceedings if the aggrieved party is successful in any court proceed-
ing and an order or judgment is rendered in his or her favor by reason of
the actions of the defaulting party.
‘‘3. It is understood and agreed that in the event a party shall institute
any such legal proceedings, and after the commencement thereof and before
Judgment is or can be entered, the defaulting party shall comply with such
term or condition of this [a]greement, then the proceeding instituted shall
be deemed to have resulted in a Judgment, Decree or Order in favor of the
aggrieved party. The provisions of this paragraph shall be in addition, and
without prejudice, to any other rights or remedies to which the aggrieved
party may be entitled.’’
18
The plaintiff has conceded that at trial she was seeking a finding of
contempt against the defendant for what she deemed to be his wilful viola-
tions of the agreement. On appeal, however, she argues that the court’s
failure to find the defendant in contempt did not absolve him of his contrac-
tual obligation to pay her attorney’s fees and costs. We decline to reach the
plaintiff’s breach of contract claim, which was not raised before the trial
court. ‘‘To review a claim advanced for the first time on appeal and not
raised before the trial court amounts to a trial by ambuscade of the trial
judge.’’ Musolino v. Musolino, 121 Conn. App. 469, 477, 997 A.2d 599 (2010).
19
The sum of $36,954.73 represents the plaintiff’s arrearage claim of
$58,186.03 less a credit of $21,231.30 due the defendant.
20
Article XXXI, paragraph 2, of the agreement provides in relevant part
that if a party commences legal proceedings to enforce the terms of the
agreement, ‘‘the defaulting party shall become liable to the aggrieved party
for reasonable attorney’s fees and reasonable expenses of litigation in bring-
ing on such proceedings if the aggrieved party is successful in any court
proceeding and an order or judgment is rendered in his or her favor by
reason of the actions of the defaulting party.’’
21
General Statutes § 46b-71 (a) provides in relevant part: ‘‘Any party to
an action in which a foreign matrimonial judgment has been rendered, shall
file, with a certified copy of the foreign matrimonial judgment, in the court
in this state in which enforcement of such judgment is sought, a certification
that such judgment is final . . . .’’
22
General Statutes § 46b-71 (b) provides in relevant part: ‘‘Such foreign
matrimonial judgment shall become a judgment of the court of this state
where it is filed and shall be enforced and otherwise treated in the same
manner as a judgment of a court in this state; provided such foreign matrimo-
nial judgment does not contravene the public policy of the state of Connecti-
cut. A foreign matrimonial judgment so filed shall have the same effect and
may be enforced or satisfied in the same manner as any like judgment of
a court of this state and is subject to the same procedures for modifying,
altering, [or] amending . . . as a judgment of a court of this state; provided,
in modifying, altering, [or] amending . . . any such foreign matrimonial
judgment in this state the substantive law of the foreign jurisdiction shall
be controlling.’’
23
The court ordered the parties to brief the following question: ‘‘Assuming,
for the sake of argument, that these modification proceedings were pending
in New York, would a New York court decline to exercise jurisdiction under
the [uniform act], and defer to a Connecticut court the determination of
the modification issue pursuant to Connecticut’s child support guidelines.’’
24
Counsel for the defendant stated in response to the court’s inquiry as
to the standard for modification in New York: ‘‘It is virtually identical in
terms of how modification works to Connecticut.’’
25
The defendant conceded that his income had increased since the time
of dissolution.
26
On his cross appeal form, the defendant stated that the judgment from
which he was appealing was ‘‘Judge Tindill’s 1/12/16 order finding New York
law applies to Connecticut child support modification proceeding, which
order was effectuated by Judge Colin’s 9/19/16 orders and thus made an
appealable judgment.’’
Practice Book § 61-8, titled ‘‘Cross Appeals,’’ provides in relevant part:
‘‘Any appellee or appellees aggrieved by the judgment or decision from
which the appellant has appealed may jointly or severally file a cross appeal
. . . .’’ Practice Book § 63-4, titled ‘‘Additional Papers To Be filed by Appel-
lant and Appellee when filing Appeal,’’ provides in relevant part that ‘‘[i]f
any appellee wishes to: (A) present for review alternative grounds upon
which the judgment may be affirmed; (B) present for review adverse rulings
or decision of the court which should be considered on appeal in the event
the appellant is awarded a new trial; or (C) claim that a new trial rather
than a directed judgment should be ordered if the appellant is successful
on appeal, that appellee shall file a preliminary statement of issues within
twenty days from the filing of the appellant’s preliminary statement of the
issues. . . .’’
27
In response to the plaintiff’s claim that the cross appeal is moot, the
defendant argues that it is not moot because this court can offer prospective
relief. Although his argument is difficult to discern and not adequately
briefed, the defendant seems to be arguing that he could obtain practical
relief if this court were to determine that Judge Tindill improperly decided
that New York law applied to the motion to modify. In that circumstance,
the defendant arguably would benefit by the application of Connecticut law
with respect to other issues that may arise in the case. Whether in the future
the parties will litigate issues affected by the choice of law question is
speculative. ‘‘[A] court will not speculate about future events . . . .’’ Ham-
mick v. Hammick, 71 Conn. App. 680, 683, 803 A.2d 373, cert. denied, 262
Conn. 908, 810 A.2d 273 (2002). Moreover, appellate courts do not issue
advisory opinions about events that may or may not occur. ‘‘Because this
court has no jurisdiction to give advisory opinions, no appeal can be decided
on its merits in the absence of an actual controversy for which judicial relief
can be granted.’’ (Internal quotation marks omitted.) Sherman v. Sherman,
41 Conn. App. 803, 806, 678 A.2d 9 (1996).