Opinion
No. TTD FA 07 4007080 S
February 28, 2008
MEMORANDUM OF DECISION RE MOTION TO ENFORCE SEPARATION AGREEMENT (#114)
A review of the record reveals that this case was commenced by the plaintiff husband by way of a complaint dated April 12, 2007, made returnable May 8, 2007. The parties have been married since June 24, 1982.
Counsel for the defendant wife filed an appearance on June 22, 2007 and then withdrew that appearance on Aug. 15, 2007 when the defendant wife filed a pro se appearance. The parties executed what purports to be a separation agreement dated Aug. 16, 2007 which is the subject of this motion. Counsel for the defendant filed a new appearance on Aug. 21, 2007 so that she was self-represented when the separation agreement at issue was executed.
The plaintiff husband requests in its motion to enforce separation agreement that "the court find that the separation agreement is legally binding as to the parties and [that] the court incorporate[s] said separation agreement into a final judgment of dissolution of the parties."
The parties appeared before the court on February 14, 2008 to argue various pendente lite motions in addition to this motion concerning whether or not this separation agreement should be enforced. The parties were ordered to brief this legal issue.
Connecticut general statutes § 46b-66 states:
(a) In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d.
(b) Agreements providing for the care, education, maintenance or support of a child beyond the age of eighteen entered into on or after July 1, 2001, shall be modifiable to the same extent as any other provision of any order or decree in accordance with section 46b-86.
(c) The provisions of chapter 909 shall be applicable to any agreement to arbitrate in an action for dissolution of marriage under this chapter, provided (1) an arbitration pursuant to such agreement may proceed only after the court has made a thorough inquiry and is satisfied that (A) each party entered into such agreement voluntarily and without coercion, and (B) such agreement is fair and equitable under the circumstances, and (2) such agreement and an arbitration pursuant to such agreement shall not include issues related to child support, visitation and custody. An arbitration award in such action shall be confirmed, modified or vacated in accordance with the provisions of chapter 909.
Thus, a clear reading of this statute suggests that the court must inquire into the financial resources and needs of the parties and ultimately make a determination as to whether or not the agreement is fair and equitable. North v. North, 183 Conn. 35, 38 (1981).
The plaintiff's accountant testified that the plaintiff is a 50% shareholder in Transfer Enterprises, Inc., as well as several other inter-related closely held corporations or limited liability companies. Even the accountant was hard-pressed to give a specific valuation for the very entity to which he has provided accounting services for more than a decade. The record reflects that the parties are still in the midst of discovery and in fact, one of the motions ruled on by the court on that date was to allocate funds for the defendant wife to engage an independent accountant to value the plaintiff's interest in the closely held businesses with which he is involved.
A review of the financial affidavits reveals that the parties dispute the value of the marital residence, the value of the defendant's newly acquired residence and the value of various deferred compensation plans. While the husband values his interest in Transfer Enterprises, Inc. as $779,000, the wife declines to place a value on said interest. Moreover, the accountant testified that the plaintiff husband also owns interests in Transfer Realty, LLC and Gator Realty but his financial affidavit does not mention those assets. If anything was made clear from the Feb. 14, 2008 hearing as well as from a review of the record, it is that the parties themselves have not sufficiently or completely valued the marital estate. It seems axiomatic that the court cannot possibly be in a position at this time to determine if the agreement is fair and equitable and entered into by both parties knowingly and voluntarily.
The court in Fitzgerald v. Fitzgerald, 169 Conn. 147 (1975) considered this issue. The court held that "the parties, when the case is tried on its merits, will have an opportunity to be heard at a meaningful time and in a meaningful manner . . ." Id. at page 151.
The court in North v. North, 183 Conn. 35, 38 (1981) similarly observed that "in the final analysis, the court must still determine that the agreement is fair and equitable."
The court in Costello v. Costello, 186 Conn. 173, 176 (1982) repeated this rule wherein it stated that an agreement "cannot become a judgment of the court until the court has determined that it is fair and equitable and has been knowingly agreed upon." Absent a full hearing on the merits, it would be impossible for the court to make these findings.
The court in Weiss v. Weiss, 2003 Ct.Sup. 14 (Scholl, J.) considered a similar issue. Quoting from Costello v. Costello, 186 Conn. 773, 776 (1982), the court held that "when parties to a dissolution action reach a settlement agreement, that agreement cannot become a judgment of the court until the court has determined that it is fair and equitable and has been knowingly agreed upon."
For the foregoing reasons, the court finds that it is premature to reach the decision about whether or not the separation agreement should be enforced. The motion is denied without prejudice. That issue may be revisited if and when this case is tried to conclusion.