Opinion
FA156026693S
03-21-2017
Joseph C. Engel v. Suzanne A. Engel
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael E. Shay, Judge Trial Referee.
The plaintiff husband (" husband") and the defendant wife (" wife"), whose maiden name was Suzanne Adams, were married at Stamford, Connecticut, on February 14, 1999. It is a first marriage for both. They are the parents of one child, Derek A. Engel, age 17. The child lives primarily with the wife at the marital home. The parties have lived separate and apart since the husband moved out of the family home on September 30, 2015, and the husband has not seen Derek since that time. Parenting issues continue to be a source of friction between the parties, even though they entered into what purports to be a Final Parenting Plan (#140.00) dated September 22, 2016, as on file with the court.
The husband is 49 years of age and has a high school education. At the time of the marriage, he was a self-employed trucker, and in fact, has been a trucker most of his adult life. Since October 2007, he has driven a fuel truck for Gault Fuel in Norwalk, where he earns $97, 000.00 per year, including bonus and " on call pay." Throughout virtually all of the marriage, the husband has been the primary source of support for the family.
The wife is 56 years of age, and she received a B.S. in Nursing from Southern Connecticut State University in 1981, as well as an M.A. in Public Health from the same institution in 1984. She has continued to maintain her nursing license in Connecticut. At the time of the marriage, she was employed by Oxford Health where she earned between $90, 000.00 and $100, 000.00 per year. However, within weeks after the marriage, she was terminated and has had no gainful employment outside the home since that time, choosing instead to remain a full-time parent. During the marriage, she assisted the husband with some bookkeeping for his business, and, in fact, orchestrated the transfer of the husband's business to her name after he had accumulated some indebtedness. She was listed as an employee, a fact not known to the husband, and she received a salary from time to time. She told the court that her overall health was good, but that she takes several prescription medications for anxiety.
Prior to the marriage, the parties entered into a Premarital Agreement (Exhibit #2) which is, in large part, the subject of this action. Both parties had access to independent counsel, and, in fact, the wife's legal counsel, Frederic Ury, drafted the document. Attorney Ury testified at trial as to the drafting and execution of the agreement. Questions arose during the course of the trial as to the enforceability of it. For one thing, there is no " Schedule B" attached disclosing the husband's separate property. Secondly, and more importantly, it became apparent to the husband after the marriage, that the wife held Oxford Health stock options that were not disclosed in the agreement which were capable of valuation.
Although the wife did bring significant assets to the marriage, other than modest retirement accounts, the parties have not accumulated any significant assets during the marriage.
As to the breakdown, the husband testified that as early as the honeymoon, there were problems with the marriage. When financial problems were encountered, he encouraged the wife to go back to work. He did so, in fact, on many occasions throughout, particularly as Derek got older. She has consistently refused to do so. Her stock response was for him to " work harder." At times the couple borrowed from family.
At first, the husband said that his wife was hypercritical of him and his lack of education. The problems only got worse after their son was born, when she quickly took virtually exclusive charge of the rearing of the child. Dismissive of his parenting skills, she refused to let the child go anywhere with the husband without her being present. Thus the seeds for estrangement, if not outright parental alienation, took root, to the point that the husband has not had any meaningful interaction with his son since he left the home almost two years ago. The child, age 17, is a junior in high school. The wife told the court that it is her intention to move to North Carolina after the son graduates from high school, and according to her, the only colleges that Derek intends to apply to are in North Carolina. When asked if she believes that the husband should have a relationship with their son, and if she encourages it, she told the court that it is up to the son. " Derek, " she said, " is able to make his own decisions, " and that " she will not encourage a relationship with his father if he does not want one." In addition, the wife told the court that her elderly mother lives in North Carolina, but the court is of the opinion that the move merely completes the process of marginalizing the husband and alienating him from his son. Given the age of the child and the apparent extent of the alienation, the court finds that it is left with an inability to provide any practical relief, and it must trust that as Derek matures and is able to sort things out, he will re-establish a meaningful relationship with his father.
For her part, the wife testified that the husband's affair has been the cause of the current problem, ignoring the fact that the marriage had been in trouble long before the husband sought comfort elsewhere. The husband testified that after Derek's birth the level of intimacy diminished, and that sexual relations eventually had become so infrequent as to be virtually nonexistent. In fact, the husband's extramarital encounters, which occurred late in the marriage, were merely symptomatic of the underlying problems and not the cause of the breakdown of the marriage. The wife's testimony simply was not credible, particularly in light of the fact that the evidence clearly indicates that she entrapped him in order to conceive a baby. Just three years after the marriage, she urged a friend to " do what she did, " and that her choice of husband was a " good genetic specimen" and was " better than a sperm bank." (Exhibit #3.) While she told the court that it was an attempt at humor, the court finds that to be untrue. Moreover, the problems experienced by Derek were, no doubt exacerbated, as the wife stoked the anxieties of a vulnerable teenager. It is little wonder that their son suffers from IBS and treats with a psychiatrist and a therapist!
The matter was tried over the course of six days, including final argument, and the evidence closed on February 28, 2017.
DISCUSSION
The parties entered into a Prenuptial Agreement (Exhibit #2) dated February 11, 1999, three days prior to their wedding. All such agreements entered into on or after October 1, 1995, are governed by the provisions of General Statutes § 46b-36a et seq., otherwise known as the Connecticut Premarital Agreement Act. At the time, both parties had the advice of counsel, and there was no apparent duress. As premarital agreements are contracts, all questions regarding the intent of the parties or the interpretation of the terms thereof are governed by contract principles. Crews v. Crews, 295 Conn. 153, 159, 989 A.2d 1060 (2010). " A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in light of the situation of the parties and the circumstances connected with the transaction . . . The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." Chang v. Chang, 170 Conn.App. 822, 827 (2017).
Looking at the agreement in question, it is clear that the intent of the parties, in particular, the wife was the insulation of her separate property acquired prior to marriage as well as after from claims by the husband in the event of " a judicial termination" of the marriage or " in the event they cease to live together as husband and wife." The term " separate property" is defined in Article 4 of the agreement. The parties agreed therein that " the separate property of each as set forth on Schedules A and B of the agreement, the separate after acquired property of each, and the proceeds of, substitutions for, or additions or increments to the separate property of each set forth on Schedules A and B shall remain the separate property of each and shall not be considered as marital property subject to allocation or division by any court . . ." Moreover, in the same article, the parties made clear that they had " intentionally made no provision in this Agreement for alimony, separate maintenance, or a property settlement " in the event of divorce. (Emphasis added.) The absence of any specific language regarding, for instance the equitable division of marital property, will not be construed as a waiver. In this case, the wife knowingly omitted the inclusion of her Oxford options. Both she and her attorney, who was the draftsman, both testified that those assets were not included since they were " under water" and had no value. It has been long held that options and other similar entities are, in fact, assets subject to equitable division and are capable of being valued. Bornemann v. Bornemann, 245 Conn. 508, 515-20, 752 A.2d 978 (1998). In point of fact, the evidence demonstrates that within a few months after the marriage, they acquired substantial actual value and were exercised by the then wife. Adding additional weight to the argument, is the fact that the wife did include " all future inheritances" with no evidence of any pending probate matters, much less a valuation for the " asset." She could have done likewise with the options, but affirmatively chose not to do so. The wife now claims that the parties to a premarital agreement are only required to make reasonable disclosure, not precise disclosure. Moreover, she would impute personal knowledge of these options to the husband on the strength of a claimed exchange between counsel. This would be unfair under all the circumstances. The testimony of the husband, a fiscally unsophisticated person, supports a finding that his attorney only offered the curt advice that the agreement, " looks all right." This, however, misses the point. While the court could find that the agreement was unenforceable due to the failure of the wife to fully disclose her assets, under all the circumstances, the court has chosen to uphold the agreement as drafted, and to look at the situation as an interpretation of the contract itself. In that light, the wife's own words as drafted permit the court to include the net result of the options as exercised as being part of the marital estate subject to equitable distribution.
FINDINGS
The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as, inter alia, the factors enumerated in General Statutes § § 46b-56, 46b-56a, 46b-56c, 46b-81, 46b-82, 46b-84, and 46b-215a, including the Child Support and Arrearage Guidelines Regulations, hereby makes the following findings:
1. That it has jurisdiction.
2. That the allegations of the Revised Amended Complaint are proven and true.
3. That the marriage of the parties has broken down irretrievably, that the husband's extramarital encounters were not the cause of the breakdown, since the marriage had been failing well prior thereto. Venuti v. Venuti, 185 Conn. 156, 159, 440 A.2d 878 (1981); and that ample evidence exists that while both parties have contributed to the breakdown of the marriage, the defendant wife is primarily at fault.
4. That one child has been born to the wife since the date of the marriage, issue thereof, to wit: Derek A. Engel, age 17; and that no other children have been born to the wife during the marriage, and she is currently not expecting.
5. That during the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof.
6. That based upon her age, education, health, past employment, and the age of the child, the wife has the ability to obtain gainful employment outside the home as a nurse or in a related position in the field of health care on a full- or part-time basis; that she has continuously maintained her nursing license in the State of Connecticut; that given the age of the minor child, it is both " desirable and feasible" that she secure such employment; that she has voluntarily chosen not to do so; and that a time-limited award of alimony is appropriate under all the circumstances. General Statutes § 46b-82(a); Ippolito v. Ippolito, 28 Conn.App. 745, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992); Milbauer v. Milbauer, 54 Conn.App. 304, 312-15, 733 A.2d 907 (1999).
7. That it is equitable and appropriate for the court to consider the earning capacity of the wife in making its orders regarding periodic alimony, Hart v. Hart, 19 Conn.App. 91, 94-95, 561 A.2d 151 (1989); that earning capacity " is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as her vocational skills, employability, age and health." Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007); that the trial court must " specify an exact earning capacity when calculating an alimony and child support award." Tanzman v. Meurer, 309 Conn. 105, 117, 70 A.3d 13 (2013); that as of January 1, 2017, the Connecticut minimum wage is $10.10 per hour; that the evidence supports a finding that it is appropriate to impute to the wife, at a minimum, an earning capacity of $21, 008.00 per annum based upon a forty-hour workweek applying minimum wage; that, in addition, the wife failed and neglected to include any income from her investments on her financial affidavit; that according to the 2014 joint federal tax return, Form 1040 (Exhibit #39) the parties reported $2, 630.00 in Qualified Dividends which it is appropriate to attribute to the wife; that it is equitable and appropriate that an equivalent sum be attributable to her income for purposes of a determination of alimony and child support, and that the wife's imputed annual income from all sources is a minimum of $23, 638.00.
8. That in entering an order for child support, a court must consider both General Statutes § 46b-215b and the Child Support and Arrearage Guidelines Regulations (" Guidelines"), as well as the factors set forth in General Statutes § 46b-84, Maturo v. Maturo, 296 Conn. 80, 90-96, 995 A.2d 1 (2010); and that alimony and child support orders must be based upon the net income of the parties. Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Ludgin v. McGowan, 64 Conn.App. 355, 358, 780 A.2d 198 (2001).
9. That the imputed income as set forth above supports a finding that the net income of the wife is $414.00 per week; and that the evidence, including the current financial affidavit of the husband, supports a finding that his net income is $1, 183.00 per week, all as set forth on a separate calculation by the court attached hereto as " Schedule B ." [*]
10. That based upon the combined net income of the parties, the presumptive basic child support is $294.00 per week; and that the husband's share is $218.00 per week.
11. That in general, an award of attorneys fees in a family matter is within the discretion of the court based upon a review of the financial ability of each party. General Statutes § 46b-62.
12. That it is more likely than not that the parents would have provided support to the minor child for higher education or private occupational school if the family were intact, in that in their proposed orders, each parent has requested that the court to retain jurisdiction to enter educational support orders in the future. General Statutes § 46b-56c.
13. That the parties entered into a Prenuptial Agreement (" Agreement") dated February 11, 1999; that both parties were in good health and not under any duress; that both parties had independent legal representation; that the intent of the parties was to insulate their separate property from equitable division in the event of a dissolution of marriage or a decision to live separate and apart; that " separate property" was, inter alia, defined in said Agreement as that property listed of Schedule A and B, the former for the wife and the latter from the husband; that the husband did not attach a Schedule B to the Agreement; that the wife listed several assets including real estate, investments, and retirement accounts along with their values; that the wife also listed future inheritances with no present value; that at the time of the execution of the Agreement, the wife owned certain stock options awarded to her by her then employer Oxford Health; that the wife did not list same on Schedule A; that her decision not to list same was a conscious decision and not an oversight; that subsequent to the execution of the Agreement, and shortly after the marriage, between 1999 and 2002, the wife exercised said options and sold 3, 780 shares of Oxford Health for a total of $72, 392.00; that said Agreement is a valid agreement and it is not unconscionable to enforce it as written. Crews v. Crews, 295 Conn. 153, 169, 989 A.2d 1060 (2010); and that the proceeds from the exercise of the Oxford options are marital property subject to equitable distribution. Chang v. Chang, 170 Conn.App. 822, 833 (2017).
14. That the husband does not have substantial liquid asset that would enable him to pay his attorneys fees; and that the wife does have substantial liquid assets, and she should therefore be responsible for her own.
15. That the parties have entered into a Final Parenting Plan dated September 22, 2016; that under all the circumstances, the Parenting Plan is in the best interest of the minor child; that in reaching this conclusion, the court has taken into consideration: (a) the age of the child; (b) that therapeutic sessions with a therapist have failed to bring about a reconciliation, and the therapist recommended that such sessions be terminated; (c) that the wife has, since the birth of the child, engaged in a deliberate course of conduct to minimize the husband's role as a parent, resulting effectively in the marginalization of his role as parent and the estrangement, if not outright alienation, of the child from his father; (d) that the father has continuously attempted to establish a meaningful relationship with his son; (e) that the wife has effectively abdicated a primary part of her role as parent, and by her own testimony, she has left the decision of a reconciliation of the minor child with his father solely in the hands of the minor child; (f) that her expressed intention to move to North Carolina with the child in approximately one year is, in essence, the final step in her long-term goal to marginalize the husband as a father to their son; and (g) that her conduct is not in the best interest of the child; and that the court is, therefore, without practical options at this late stage.
16. That throughout the marriage, until their separation, although the wife provided some financial support, the husband provided the principal financial support for the family, and he made significant contributions to the acquisition, maintenance, and preservation of both the separate assets of the parties, including the real estate, as well as the other family assets.
17. That " the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court." Stearns v. Stearns, 4 Conn.App. 323, 327, 494 A.2d 595 (1985); Schoenborn v. Schoenborn, 144 Conn.App. 846, 851, 74 A.3d 482 (2013); that the court found the testimony of the husband to be credible; and that the court found a significant part of the wife's testimony to be lacking in credibility.
ORDERS
IT IS HEREBY ORDERED THAT:
1. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.
2. The parties shall share joint legal custody of the minor child, Derek Engel, who shall reside primarily with the wife pursuant to a certain Final Parenting Plane dated September 22, 2016, which the court finds, with certain reservations as set forth in its findings herein, to be under all the circumstances to be in the best interest of the minor child and hereby approves and incorporates same in its decision as " Schedule A ."
3. Commencing March 1, 2017 and monthly thereafter, the husband shall pay to the wife the sum of $555.00 as and for periodic alimony, until the death of either party, the remarriage of the wife, the entry into a civil union by the wife, or August 31, 2017, whichever shall sooner occur. It is the intention of the court that, except for the foregoing, that the term of periodic alimony shall be non-modifiable by either party .
4. Commencing April 1, 2017, and monthly thereafter, the husband shall pay to the wife the sum of $945.00 as and for child support, until such time as the child shall reach the age of eighteen years or shall be otherwise emancipated. The foregoing notwithstanding, if the child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of next month following graduation from high school or his nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).
5. The husband shall promptly notify his employer as to the change of marital status and shall cooperate with the wife in obtaining continuation health insurance coverage as provided by state and federal law. The wife shall be responsible for the payment of any premiums due for such coverage.
6. The husband shall maintain and pay for health insurance for the minor child so long as he shall be obligated to pay child support for that child, including post-majority support pursuant to an educational support order or a written post-majority agreement. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor child shall be divided by the parties, 60% by the husband and 40% by the wife. The provisions of General Statutes § 46b-84(e) shall apply.
7. Pursuant to General Statutes § 46b-84(f)(1), as and for security for his child support obligation hereunder, the husband shall maintain the existing group term life insurance in the amount of $50, 000.00, so long as it is an incident of his employment and available at reasonable cost, and he shall name the minor child beneficiary thereof for so long as he has an obligation to pay child support under the terms of this decree. For purposes of the enforcement of this provision, a child support order shall include an educational support order pursuant to General Statutes § 46b-56c or a written agreement of the parties for post-majority educational support.
8. The court hereby reserves jurisdiction to enter an educational support order pursuant to General Statutes § 46b-56c.
9. Within thirty (30) days from the date of this Memorandum of Decision, the wife shall pay to the husband a lump sum in the amount of $35, 000.00 as and for equitable division of the marital estate.
10. The wife shall retain title to the real property located at 1 Linden Heights, Norwalk, Connecticut, together with any buildings and improvements thereon, subject to any existing mortgage or other indebtedness, free and clear of any further claims by the husband. The wife shall indemnify and hold the husband harmless from any liability arising out of any such mortgage or indebtedness.
11. Personal property shall be divided as follows:
A. Except as otherwise set forth herein, the wife shall retain the furniture and furnishings located at 1 Linden Heights, Norwalk, Connecticut, free and clear of any claims by the husband.
B. Each party shall be entitled to retain the automobile which they are currently driving, subject to any existing liens, loans, or leases, for which they shall assume sole financial responsibility and indemnify and hold the other harmless, free and clear of any claims by the other, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same. Specifically, the husband drives a 2001 Jeep Grand Cherokee, and the wife drives a 2014 Jeep Grand Cherokee.
C. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings, checking, and money market accounts free and clear of any claims by the other.
D. Except as otherwise set forth herein, all joint savings and checking accounts shall be divided equally.
E. The husband shall be entitled to retain the following items free and clear of any claims by the wife:
1. All of his clothing and personal effects, wherever located, including his watches, rings, and other jewelry;
2. His tools;
3. People's Securities Investment Account (#XXX2009).
F. The wife shall be entitled to retain the following property free and clear of any claims by the husband:
1. All of her clothing and personal effects, wherever located, including her watches, rings, and other jewelry;
2. After taking into account the lump sum property division herein, the balance of Morgan Stanley Investment Account (#XXX6135);
3. After taking into account the lump sum property division herein, the balance of Deutsche Bank Investment Account (#XXX3753).
12. The Retirement Assets of the parties shall be divided as follows:
A. The husband shall retain his interest in the Newport Group § 401K Plan free and clear of any claims by the wife.
B. The wife shall retain her interest in the Morgan Stanley Individual Retirement Account ( #XXX9135 ) free and clear of any claims by the husband.
C. The wife shall retain her interest in the Fidelity § 401K Plan (#XXX0475 ) free and clear of any claims by the husband.
13. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon.
14. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.
15. The Court hereby orders an Immediate Wage Withholding Order pursuant to General Statutes § 52-362(b) in order to secure the payment of the alimony/child support order.
16. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25-59A(h).
THE COURT
SHAY, Judge Trial Referee
" SCHEDULE A"
SEPTEMBER 22, 2016
FINAL PARENTING PLAN
The parties hereby agree to the following parenting plan in connection with their minor child: Derek, age 16.
CUSTODY AND VISITATION
1. The Mother shall have primary physical custody, and the parties shall share joint legal custody of the minor child, Derek, age 16.
2. The Father shall have parenting time with the minor child pursuant to the mutual agreement of the parties.
DECISION MAKING
3. The parties agree to consult with each other regarding major decisions affecting the minor child, including, but not limited to, issues affecting the child's general welfare, religious upbringing, educational matters and non-emergency health care treatment. In the event of disagreement between the parties with regard to any major decision affecting the minor child, the parties shall first attempt resolution of the issue either through working with a mediator, the cost of which shall be shared equally by the parties.
COMMUNICATION, ACCESS AND DISPUTE RESOLUTION
4. It is the intention of the parties in agreeing to joint legal custody that each of them shall continue having full and active roles providing a sound moral and social environment for the minor child.
5. The parties shall exert every effort to promote free access and unhampered contact between the child and each of the parties and to foster a feeling of affection between the child and the parties hereto. Each party shall exert his and her best efforts to refrain from doing anything to estrange the child from the other party, or to act in such a way as to hamper the free and natural development of love and respect between parent and child.
6. The Mother and Father shall not make any statement derogatory or critical of the other in the minor child's presence and shall not use the minor child as an intermediaries for communication.
7. Each party shall have equal access to all medical and educational records for the child. Promptly upon receipt, each of the parties shall furnish the other copies of any reports or authorizations to request reports from third persons or institutions concerning the health, education or welfare of the child. The parent with weekend or holiday parenting time shall be responsible for ensuring that the child meet their normal obligations such as homework, music, and sports lessons.
8. Both the Mother and Father shall have equal rights to attend all public events and school-related activities when and where the minor child are participating.
9. Both the Mother and Father shall have equal rights to attend all school conferences and all health-related conferences and scheduled appointments involving the minor child and shall have equal access to all school records. The Mother and the Father shall notify the other parent by email of any school conference and health-related conferences and scheduled appointments involving the minor child within forty-eight hours of his or her receipt of the notice so that the other parent shall have an adequate opportunity to attend the event.
10. If, during either parties' parenting time, a medical condition occurs as to any child, the parent who has the child shall notify the other parent of the medical condition of the child immediately.
11. The parties shall inform the other parent, in writing, of any intended change in address at least thirty (30) days in advance.
TRAVEL
12. In the event either party wishes to travel outside (i.e. beyond the boundary) of New England (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut) or New York or New Jersey with the minor child, they shall first provide the other party with no less than three (3) days notice of their intention to do so. They shall also provide a planned itinerary including destination, method and means of travel including flight numbers if applicable, lodging information duration of intended travel and appropriate telephone numbers, including land line(s), if any are available. Consent may not be unreasonably withheld.
13. No party shall travel outside of the country with the minor child absent written consent by the other after providing the other party with no less than thirty (30) days notice of their intention to do so. They shall also provide a planned itinerary including destination, method and means of travel including flight numbers if applicable, lodging information duration of intended travel and appropriate telephone numbers, including land line(s), if any are available. Consent may not be unreasonably withheld.
RELOCATION
14. The Mother shall not relocate the primary residence of the child outside of the boundaries of towns contiguous to Norwalk, Connecticut without either the written agreement of the Father or a court order permitting such relocation. If the Mother wishes to relocate the primary residence of the child outside of the boundaries of towns contiguous to Norwalk, Connecticut, she shall provide the Father with sixty (60) days written notice in advance of the proposed date of relocation. Consent to so relocate the foregoing primary residence (of the child) may not be unreasonably withheld.
JOSEPH ENGEL, SUZANNE ENGEL. [*]Editor's Note: The referenced " Schedule B, " pg. 8, par. #9 has not been reproduced.