Barber v. Barber

Connecticut Appellate Court · 2019 · Family Law

Family LawChild SupportModificationAttorney's FeesContemptForeign Matrimonial Judgmentsseparation agreementchild support

Facts

The parties' New York dissolution judgment incorporated a detailed separation agreement construed under New York law and requiring the defendant to pay both basic and add-on child support. After the judgment, the plaintiff moved to Connecticut with the children and the defendant moved to New Jersey; the defendant then registered the New York judgment in Connecticut and sought a downward modification based on an alleged substantial change in circumstances. The plaintiff later sought contempt and attorney's fees, claiming the defendant had failed to pay basic child support and certain add-on expenses and had unsuccessfully challenged the agreement's governing law. The trial court denied contempt and fees, found the amount of basic child support was not entirely clear, and ordered the parties to have their accountants exchange calculations and attempt reconciliation under the agreement before seeking further judicial intervention.

Issue

Did the trial court improperly rewrite the parties' agreement by directing how their accountants should calculate and reconcile basic child support, and did it err in denying the plaintiff attorney's fees under the agreement's fee-shifting provisions? On cross appeal, was it reversible error to apply New York rather than Connecticut law to the defendant's motion to modify child support?

Rule

A court construing and enforcing a dissolution judgment incorporated from a separation agreement may issue orders that implement the agreement's existing procedures and facilitate compliance without rewriting the agreement. Contractual attorney's fees provisions are enforced according to their terms, but fees are not warranted where the movant is not successful under the agreement's standards, and appellate review is unavailable when the record is inadequate to reveal the basis of the trial court's ruling. A child support modification requires a substantial change in circumstances under both New York and Connecticut law, and an appeal is moot when application of either law would produce the same result and no practical relief can be granted.

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A dissolution judgment entered in Oregon incorporated a settlement agreement requiring that any annual child-support recalculation dispute first be submitted to each party’s accountant for exchange of figures and an attempt at reconciliation before either party files in court. After a disagreement arose in Seattle, Dana Ortiz filed immediately for contempt in Connecticut, and the judge ordered both accountants to exchange worksheets within 30 and 60 days and confer before any further hearing.

Did the judge most likely impermissibly rewrite the parties’ agreement?

Explanation. A court does not rewrite an incorporated separation agreement when it issues implementation orders that facilitate compliance with procedures already required by the agreement. Adding a timetable for exchanging information and using the agreement’s own reconciliation mechanism is enforcement, not modification. (Derived from Barber v. Barber (n.d.).)