Opinion
No. FA01-0164354S
July 2, 2010
There are four motions before the court. The first is the motion (#136) of the defendant, Algrid Kausyla, to modify certain orders contained in the parties' dissolution judgment. The plaintiff, Nancy Kausyla, filed the other three, including a motion for attorneys fees (#137), a motion for restraining order (#138) and a motion for contempt (#139). In this memorandum the court disposes of each motion separately.
FACTS
A brief recitation of the facts assists in putting this matter into focus. After a twenty-six year marriage, the parties were divorced on February 21, 2002. At the uncontested dissolution of marriage hearing, the plaintiff was represented by counsel and the defendant was a self-represented litigant. The plaintiff's counsel drafted the separation agreement (#104), which included the following paragraphs:
2. Alimony. The Husband shall pay to the Wife no less than $1,500.00 per month ($346.15 per week) . . . Said alimony shall be non-modifiable as to amount and duration. However, alimony may be modifiable upward if there is a substantial change in the Husband's income or an inheritance. Said alimony shall continue until the death of either party.
3. Medical Insurance. The Husband shall provide and pay for medical insurance coverage for the benefit of the Wife until such time as she is deceased, this provision is non-modifiable.
At the time of the dissolution of marriage, the plaintiff was a homemaker without any employment income. The defendant was the owner of a small telecommunications installation business known as Consolidated Communications, LLC from which he earned a gross of $1,635.00 and a net of $943.00 per week. One of his benefits included medical insurance, which also covered the plaintiff. That insurance is no longer available. As a result, he has been unable to purchase medical insurance covering himself and has been forced to purchase separate insurance for the plaintiff, at a prohibitive cost, to satisfy the court order.
On the date of the hearing on the contested motions, May 13, 2010, the defendant was sixty-three years old and unemployed. His company was dissolved earlier in the year for lack of business due to the downward turn in the economy. His current financial affidavit showed no employment income and his testimony was that he has been searching for work since last January but was unable to find any employment. The plaintiff remains unemployed as she was on the dissolution of marriage date. Her ability to find employment is problematical because of numerous health issues. As a result, she relies on the alimony order to survive and the medical insurance order to help her with numerous medical bills. The testimony of both parties was credible.
It should be noted that defendant, at the final hearing, was thoroughly canvassed by Judge Sandra Leheny as to the terms and conditions of the separation agreement. During the canvass, he only had one question, concerning life insurance, which led to a short recess and a slight change in the language of that paragraph. He testified that he understood the agreement, believed it to be fair and equitable, was not forced to sign it, had enough time to think it over, and had no other questions. The transcript clearly reveals that the alimony and medical insurance provisions, specifically their non-modifiability, were discussed during the canvass of the parties.
I MOTION TO OPEN AND MODIFY ALIMONY AND INSURANCE OBLIGATION (# 136)
In his motion to modify, filed December 22, 2009, the defendant requests that certain of the orders of the dissolution judgment be modified to "appropriate levels to reflect [the defendant's] current earnings." The court held a hearing on the motion to modify on May 13, 2010. That same day, the defendant filed a post-hearing brief. On May 28, 2010, the plaintiff filed a reply brief.
General Statutes § 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . ." The court retains continuing jurisdiction for this purpose. Way v. Way, 60 Conn.App. 189, 194, 758 A.2d 884, cert. denied, 255 Conn. 901, 762 A.2d 910 (2000)
A Whether the Non-modification Clauses Are Enforceable
At issue is whether the non-modification clauses of paragraphs two and three are effective to preclude the court's power to modify those paragraphs. A separation agreement is essentially treated as a contract. Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999). "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Citation omitted; internal quotation marks omitted.) Id., 235.
Parties to a separation agreement are permitted to make alimony provisions non-modifiable; however, the agreement "must contain language to that effect." (Internal quotation marks omitted.) Burke v. Burke, 94 Conn.App. 416, 422, 892 A.2d 964 (2006). "It is well established within our jurisprudence that [p]rovisions which preclude modification of alimony [or support] tend to be disfavored . . . In accordance with the preference in favor of modification, ambiguous non-modification provisions are construed to permit modification . . . Non-modification provisions that are clear and unambiguous, however, are enforceable." (Citations omitted; internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 693, 941 A.2d 301 (2008)
The defendant argues that the non-modification provisions of paragraphs two and three are ambiguous and thus unenforceable. He points out that paragraph two includes a sentence forbidding modification and then a sentence immediately thereafter allowing an upward modification. The defendant also indicates that paragraph twelve allows a debt indemnification order entered in favor of one party against the other to be converted to an alimony order upon the filing of a bankruptcy petition. He concludes that these facts render the non-modification clause of paragraph two ambiguous. The defendant argues that paragraph three is ambiguous as to modification because the court approved an agreement between the parties modifying the separation agreement to include the type of medical insurance to be provided. (See Agreement #114.)
The defendant cites the recent case of Flaherty v. Flaherty, 120 Conn.App. 266, 990 A.2d 1274 (2010), in support of his argument as to ambiguity. This is a significant case in that it stands for the proposition that any ambiguity as to the substance of an order contained in a provision of a separation agreement implies that the parties intended the provision itself to be modifiable. In Flaherty, the wife appealed from the denial of her motion to modify the terms of a particular section of the separation agreement that was made part of the judgment of dissolution, namely § 4.6. See id., 267. Section 4.6 provided: "The [husband] agrees to contribute towards the educational expenses of each child in the event that any child desires to attend post-secondary school and is accepted at any post-secondary school. Each party shall fully cooperate in seeking other sources of financial assistance for the educational expenses . . . which may be available in order to assist the [husband] in discharging this undertaking." (Internal quotation marks omitted.) Id., 267-68. The trial court, Cutsumpas, J.T.R., held that the agreement was non-modifiable under a provision of Article XIV, entitled "Miscellaneous," specifically § 14.9, which provided: "This Agreement shall not be modified or altered except by an instrument signed and acknowledged by the [parties]." Id., 266-68. The Appellate Court reversed on the ground that the separation agreement, despite § 14.9, was ambiguous as to the power of the court to modify its provisions, including § 4.6. See id., 273.
The Appellate Court, after acknowledging that § 14.9 itself purported to preclude modification of the separation agreement, pointed to other provisions in the separation agreement that it understood to manifest a contrary intent to permit modification. See id., 271. The court found that § 4.6 itself was substantively ambiguous because it did not provide for, among other things, how much the husband was supposed to "contribute." Id., 273. The court concluded, therefore, that "[s]imply, § 4.6 cannot be given effect if § 14.9 is read as controlling the entire separation agreement . . . Furthermore, unlike § 4.1 [which set forth the husband's alimony obligation] § 4.6 does not state that it is non-modifiable. As evidenced by § 4.1, when the parties wanted to make a particular provision non-modifiable, they so expressed." (Citation omitted.) Id., 272-73. The implication of this reasoning is clear; in order for there to be a conflict between § 4.6, because it is ambiguous as to what is ordered, and § 14.9, which forbids modification, the ambiguity in § 4.6 must, inherently, reflect the parties' contrary intent to make such provision modifiable.
The Appellate Court's analyses of the other cited provisions also mirror this principle. It found conflicts between § 14.9 and both § 4.4, which provided: "[t]he [husband] shall provide the [wife] with annual substantiation of his earnings," and § 4.3, which provided: "[c]hild support shall be adjusted according to the applicable guidelines." Id., 271-72. In both of these provisions, the court essentially found that, because they reflected a contemplation by the parties that the substance of the orders contained in the provisions of the separation agreement might be subject to change or clarification in the future, they inherently reflected an intent by the parties that the provisions of the separation agreement themselves should be modifiable.
Flaherty is applicable to paragraph three of the separation agreement in the present case. Paragraph three merely directs that the defendant "provide and pay for medical insurance coverage . . ." It does not explain what type of medical insurance the defendant is to purchase or how much coverage he is to obtain, for example. This is similar to the ambiguous provision, § 4.6, at issue in Flaherty. The parties contemplated that the details would be determined later. Those details were determined by later agreement. (See Agreement #114). Thus, under the rule in Flaherty, the court finds that the parties, by drafting this ambiguous provision, intended for it to be modifiable. Since this intent is in conflict with the intent expressed in the non-modification clause of paragraph three, the court holds that there is an ambiguity as to the modifiability of paragraph three. Therefore, the non-modification clause therein is unenforceable.
The plaintiff's contention that Flaherty is distinguishable is unpersuasive. First, it is not dispositive that the parties to the present case, unlike in Flaherty, do not have a provision allowing review of the parties' finances. In Flaherty, that provision was one of a few provisions relied upon by the Appellate Court, and was by no means crucial to its holding. Second, it is not distinguishable because it involved post-majority child support as opposed to alimony; the same statutory authority permits the modification of both types of support. See Flaherty v. Flaherty, supra, 120 Conn.App. 268 n. 2. Furthermore, in the context of modification, child support is treated differently than alimony only in that its modifiability "cannot be permanently restricted." Id., 272. The court in Flaherty did not rely upon this rule in reaching its holding, however.
As to paragraph two of the separation agreement regarding alimony in the present case, the court finds that it unambiguously forbids a downward modification. It is permissible for a separation agreement to contain a provision forbidding modification with certain exceptions, and such a provision is not per se ambiguous. See, e.g., Amodio v. Amodio, 45 Conn.App. 737, 697 A.2d 373 (1997) (holding that provision restricting modifiability of child support except in case of "change in circumstances reflecting an increase in [the defendant's] gross wages above the base of $900 per week" unambiguously precluded defendant's motion for modification), rev'd on other grounds, 247 Conn. 724, 724 A.2d 1084 (1999). In the present case, the intent is clear and unambiguous even if the language is in-artfully drafted. Essentially, paragraph two provides that alimony is generally non-modifiable, but if there is a substantial change in the defendant's income or if he receives an inheritance, it may nevertheless be modifiable upward. Therefore, the motion to modify is barred by the terms of paragraph two.
Contrary to the defendant's contention, Flaherty does not apply to paragraph two, as such paragraph is not ambiguous as to the defendant's duty to pay the plaintiff $1500 per month until the death of either party. Furthermore, Flaherty does not stand for the proposition that a non-modification clause cannot have exceptions. The agreement in Flaherty was held to be ambiguous because it had one provision that operated as a blanket ban on modification, absent proper agreement of the parties, and other contradictory provisions that suggested that the parties intended to allow modification even in the absence of such an agreement. In the present case, there is no contrary provision suggesting that the parties intended to allow downward modification.
This includes the language in paragraph twelve, which the defendant argues allows modification of alimony. Paragraph twelve sets forth the parties' obligations in certain situations where one of the parties has filed for bankruptcy or has made an assignment for the benefit of creditors. This paragraph does not suggest that paragraph two is modifiable. The purpose of paragraph twelve is merely to prevent parties from using the bankruptcy laws and assignments for the benefit of creditors to avoid their obligations under the separation agreement.
Paragraph twelve provides: "The parties have consented to the terms of this Agreement upon their reliance on the express representations made to each other that all of its terms, particularly those with respect to the payment of debts, and distributive award/cash payments as provided herein shall be complied with in full. Accordingly, it is the parties' express intention that the said, [sic] alimony and distributive award/case [sic] payments to be made pursuant to the terms of this Agreement shall not be terminated, diminished or in any way affected by the filing of a petition for bankruptcy, or making an assignment for the benefit of creditors by either party.
"Therefore, in the event that either party files a petition in bankruptcy or makes an assignment for the benefit of creditors, either of which would otherwise result in depriving the other of any payments due under this Agreement, all payments or transfers herein intended as, property divisions or debt payments shall be deemed to be payment for the other's maintenance and the person filing under the bankruptcy laws shall be responsible for compensating alimony payments in the event that the other party is required to make a payment to a third party creditor otherwise the responsibility of the bankrupt party under the terms of this Agreement.
"It is the express intention of the parties that neither the [defendant] nor the [plaintiff] be allowed to use the bankruptcy laws to interfere with the intent of this Agreement and, to that extent, each party waives any right he or she may now or in the future have under the bankruptcy laws that would interfere with the carrying out of the intent of this Agreement."
The defendant finally argues that the court should apply equitable principles and construe the separation agreement to permit modification of paragraph two because enforcement of the terms would work an "injustice." In support of his argument he cites to case law, specifically McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980), relating to the enforceability of antenuptial agreements. Obviously McHugh is not on point because there is no antenuptial agreement in this case. Furthermore, the defendant does not cite any case law allowing the court to use equitable principles to free a contracting party to a separation agreement from his non-modifiable obligations, to which he consented, simply because the terms are unfavorable or became burdensome over time.
B Whether There Has Been a Substantial Change in Circumstances
Under § 46b-86(a), the modification of an alimony order requires the "showing of a substantial change in the circumstances of either party . . ." "Trial courts have broad discretion in deciding motions for modification . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances . . . The change may be in the circumstances of either party . . . The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award." (Citations omitted; internal quotation marks omitted.) Crowley v. Crowley, 46 Conn.App. 87, 91-92, 699 A.2d 1029 (1997).
The court finds, based on the existing record, that there has been a substantial change in the circumstances of the defendant. At the time of the dissolution, the defendant was earning a gross of $1,635.00 and a net of $943.00 per week and had company-provided insurance. Currently, the defendant is unemployed, leaving him with no employment income or company-provided insurance, and has been unable up to this point to find suitable employment.
C Conclusion and Orders
Based on the above analysis, the motion to modify is granted in part and denied in part. Specifically, the court grants the motion as to paragraph three and denies it as to paragraph two.
Accordingly, the court hereby orders as follows:
1. The defendant is ordered to continue to pay the plaintiff periodic alimony of $1,500.00 per month ($346.15 per week) as mandated by the terms of paragraph two until such time as said obligation is extinguished by operation of the terms of the separation agreement.
2. The obligation of the defendant to provide medical insurance to the plaintiff as provided for in paragraph three and in the subsequent agreement of the parties (# 114) dated May 30, 2006, is ordered suspended in full until (a) such time as the court renders a subsequent order as to this obligation or (b) such obligation is extinguished by operation of the terms of the separation agreement.
3. During such time as the suspension of his obligation to provide medical insurance coverage is in effect, the defendant is ordered to make a good faith, reasonable effort to find gainful employment suitable for a person of his background, experience and skills. If the defendant neglects to comply with this order, the court may, upon motion of the plaintiff, order that the suspension of his medical insurance obligation be lifted.
4. If, during such time as the suspension of his obligation to provide medical insurance coverage is in effect, the defendant secures gainful employment of any kind, he is ordered to inform the plaintiff thereof without undue delay so that the court can, upon motion of the plaintiff, render a subsequent order fixing the defendant's obligation. If the court finds that the defendant has neglected to so inform the plaintiff without undue delay, the court may, upon motion of the plaintiff, order that the suspension of his medical insurance obligation be lifted.
II MOTION FOR ATTORNEYS FEES (#137)
The plaintiff's motion for attorneys fees for the defense of the defendant's most recent motion to open and modify is denied. There were legitimate reasons for the defendant to file this motion. Furthermore, the defendant finds himself in very difficult financial circumstances at the present time, without adequate funds to support himself, much less to pay counsel fees for a properly filed motion.
III MOTION FOR RESTRAINING ORDER (#138)
The plaintiff's motion for a restraining order precluding the plaintiff from filing future motions to modify is denied. There were legitimate reasons for the defendant to file such motions in the past even if, as it turned out, they were not granted. Furthermore, the defendant paid the plaintiff's counsel fees for some of the motions, which the court finds were hardly numerous or burdensome as is the case in so many family matters.
IV MOTION FOR CONTEMPT (#139)
The plaintiff's motion for contempt seeking a finding that the defendant willfully failed to pay the alimony order is denied. The parties stipulated that the alimony was paid in full through April, although alimony for the month of May is still due and owing. There were legitimate reasons for the tardiness of the payments through April.