Opinion
No. FA04 041 26 12 S
September 26, 2005
MEMORANDUM OF DECISION
The parties were divorced in Pennsylvania in 1998. A separation agreement was approved and was incorporated into the judgment. The defendant father then relocated to Massachusetts; the plaintiff mother relocated to Connecticut with their two children. The parties now come before this court to resolve a number of post-judgment issues. The judgment has been certified in Connecticut pursuant to Connecticut General Statute § 46b-72.
The mainstay of the parties' dispute involves the interpretation of the Pennsylvania judgment. The first issue is whether under the terms of the agreement the mother has sole legal custody of the children, or, conversely, the agreement provides that the father share joint legal custody of the two children? The specific language in the agreement is contained in ¶ 10:
The parties have given long and careful consideration to the best interests and welfare of their two minor children as regards an agreement as to custody and partial custody of said minor children. Husband has moved from the Commonwealth of Pennsylvania and has established a residence in another jurisdiction. The children currently reside with the wife in Allegeny County, Pennsylvania. Wife will be the primary custodial parent with liberal partial custody rights with husband as the parties will agree between themselves. Both parties agree that this arrangement would currently be the best choice for the children in terms of consistent and stable care taking. Both parties agree that the children's best interest and welfare is always primary, and a sense of stability and continuity is important. Both parties commit themselves as parents to continue to play a vital role in the lives of the children. In the event that the parties are unable to agree on any matter concerning custody/partial custody, either party shall be free to seek relief from any Court of competent jurisdiction.
A foreign matrimonial judgment which has been properly certified shall be enforced in the same manner as a judgment of a court in this state, so long as it does not contravene the public policy of this state. "[I]n modifying, altering, amending, setting aside, vacating, staying, or suspending any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling." Connecticut General Statute § 46b-71. In interpreting a marital settlement agreement, contract principles apply. Laudig v. Laudig, 425 Pa.Super. 228, 624 A.2d 651, 653 (Pa.Super. 1993). The law of contracts requires contractual terms that are clear and unambiguous to be given effect without reference to matters outside the contract. Carosone v. Carosone, 455 Pa.Super. 450, 688 A.2d 733, 735 (Pa.Super. 1997). A contract is deemed "ambiguous if it is reasonably susceptible of different constructions and being understood in more than one sense." Lower v. Lower, 401 Pa.Super. 158, 584 A.2d 1028 (Pa.Super. 1991). "The paramount goal of contract interpretation is to ascertain and give effect to the parties' intent. To accomplish this goal, each and every part of the contract must be taken into consideration and given effect if possible, and the intention of the parties must be ascertained from the entire document." Laudig v. Laudig, 425 Pa.Super. 228 at 234.
23 Pa. C.S.A. § 5302 provides the following definitions which are relevant to this discussion:
"Legal custody." The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.
"Partial custody." The right to take possession of a child away from the custodial parent for a certain period of time.
"Physical custody." The actual physical possession and control of a child. 1985, Oct. 30, P.L. 264, No. 66, § 1, effective in 90 days.
Moreover, "sole custody" may be awarded under Pennsylvania law if there is a finding that it is in the child's best interest. 23 Pa. C.S.A. § 5303.
The parties did not refer to "sole" custody in their agreement; nor, was there a finding that sole custody was in the children's best interest. In addition, the parties did not address the issue of "legal custody," or decision making authority pertaining to the children. The parties agreed that the mother was to have "primary" custody. "Primary custody" is not defined by Pennsylvania statute; however, this term could refer to primary physical and legal (decision making) custody, or specifically, primary physical custody. Primary or final decision making authority under Pennsylvania law has been equated with sole legal custody. See Hill v. Hill, 1993 Pa.Super. 553, 619 A.2d. 1086 (1992). By the terms of the agreement the father is to have "liberal partial custody," which, by statutory definition would refer to limited physical custody or visitation.
Paragraph 10 provides that if there are any disagreements between the parties "on any matter concerning custody/partial custody," the parties are free to return to court. This language could be consistent with the father having joint decision making authority: if there are disagreements between the parties on " any matter pertaining to custody/partial custody," i.e., child issues, each would be free to return to court. It may also refer to the physical custody arrangement itself: if either party disagreed with the custody arrangement, resolution could be sought judicially. Lastly, in the agreement the parties commit themselves to play a vital role in the children's lives. The court would interpret this to include decision making authority. The plaintiff argues that this has not occurred and that the defendant has not satisfied Pennsylvania criteria for shared custody. While these arguments may be relevant in a motion to modify legal custody, they are not pertinent to the interpretation of the original agreement.
Given the hybrid and inconsistent language and undefined or absent terms in paragraph 10 viewed in its entirety, the court finds this agreement to be ambiguous. The parties' intent as to the legal custody of their children is unclear. "A contract is deemed ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Lower v. Lower, 401 Pa.Super. 158, 584 A.2d 1028 (1991). Where the contract terms are ambiguous the court may receive extrinsic evidence to resolve the ambiguity. Krizovensky v. Krizovensky, 425 Pa.Super. 204, 242, 624 A.2d 638 (Pa.Super. 1993).
The second issue in dispute is the definition of "medical expenses" which appears in ¶ 12 of the divorce agreement. The Pennsylvania Child Support Guidelines in effect in January 1998, defines medical expenses as: "(1) . . . all expenses incurred for reasonably necessary medical services and supplies, including but not limited to surgical, dental, chiropractic and optical services; (2) do not include cosmetic, psychiatric or psychological services, or orthodontia, unless specifically directed in the order of support." Pennsylvania Rules of Civil Procedure, Rule 1910.15-5(p). There is a Note to this rule which allows the court to order payment retroactively for services not specifically set forth in the order of support "if the obligee acted reasonably in obtaining services." Id.
A copy of the relevant rule is appended.
This court interprets "medical expenses" as stated in the parties' agreement in accordance with § (p)(1); medical services and supplies including surgical, dental, chiropractic and optical services.
The parties shall schedule an evidentiary hearing consistent with this decision.
CAROL A. WOLVEN, J.
*Copy not reproduced herein.