Opinion
No. FA94-0141376S
May 6, 2011
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court on August 25, 1995, at which time the parties submitted a Separation Agreement ("Agreement") which was approved by the court and incorporated in the decree (#181.00). The relevant provisions of the Agreement, inter alia, called for an initial payment of alimony in the amount $2,250.00 per month, which increased to $3,500.00 per month after August 31, 1997. Additional alimony for the first two years amounted to $30,000 payable in three installments, dropping to $15,000.00 in three equal installments thereafter. Alimony was modifiable by the defendant wife ("wife") in the future only if the plaintiff husband's ("husband") annual income exceeded $225,000.00.
By motion (#201.00/201.01) dated September 19, 2005, the wife sought to modify the decree. This motion was amended once on November 7, 2005 (#205.10), and again on February 6, 2006 (#226.00). After many frustrating fits and starts, mainly in the efforts of the wife to obtain discovery, the court finally commenced four days of hearings starting June 9, 2010, when it heard testimony and received evidence regarding the threshold issue of the husband's annual income. At the conclusion of that phase of the hearing on July 22, 2010, the court found that, in fact, the threshold had been met (TR 7/22/10, pp. 2-3 and 6-7), and it scheduled a continuation of the hearing to consider whether or not to modify the order. In the interim, there was a hiatus to allow the husband to address a recently diagnosed medical condition. The hearing was then rescheduled to resume on March 8, 2011. On that date, at the request of counsel and prior to the recommencement of testimony, the court met with both counsel in chambers, following which, again at the request of both attorneys, the court gave them permission to discuss settlement of the case.
Later that day, the parties reported settlement, including the finding of an arrearage, and asked to place it on the record. In open court, the husband's counsel referred to the settlement as an "agreement" (TR 3/8/11, p. 2) and read the salient points into the record. In brief, the agreement provided the following: (1) a modification of the alimony to $100,000.00 per year commencing effective for the period November 1, 2005 through October 31, 2010; thereafter alimony in the amount of $85,000.00 per year commencing effective November 1, 2010 (3) a finding of a total arrearage of $226,666.00 payable in two equal installments on June 30, 2011 and January 2, 2012; (3) alimony payable until the death of either party or until the wife's remarriage or cohabitation, and non-modifiable as to term and amount; (4) the husband to maintain $400,000.00 of life insurance on his life, at his cost, for a period of five years, with proof of coverage and annual disclosure, along with a "second look" to determine whether or not to continue said insurance, and if so, how much coverage should be maintained, which determination shall be made in the Connecticut Superior Court; and (5) each party will pay their own counsel fees. (TR 3/8/11, pp. 2-3.)
This was followed by a canvass of both parties by the court, which was satisfied with the terms and pronounced the agreement fair (TR 3/8/11, p. 5). Also at that time, both counsel indicated to the court that they were prepared to file current financial affidavits. The parties were given until March 23 to put the agreement in writing and to deal with any drafting issues that might be in dispute.
On March 23, 2011, once again in open court, with both counsel present and the wife present, counsel for the husband declared that the husband had changed his mind, and that what transpired on March 8 was not his agreement (TR 3/23/11, pp. 1-2). The court gave the parties additional time, to April 4, to submit memoranda of law regarding the issue of the validity of the agreement and its enforceability. The parties did so, and on April 18, the court heard argument by counsel and took the papers. At that time, the court advised counsel that it was primarily concerned with the question of whether or not the court had the authority to enter judgment on what was, by all appearances, a valid agreement.
LAW
It has been long held that the "private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine." Hayes v. Beresford, 184 Conn. 558, 568 (1981), and it is a common practice in the Family Court to enter judgments or orders based upon oral agreements, usually following a canvass of the parties. Isham v. Isham, 292 Conn. 170, 172-74 (2009); Burke v. Burke, 94 Conn.App. 416, 418 (2006). "A judgment rendered in accordance with . . . [an agreement] . . . of the parties is to be regarded and construed as a contract." Barnard v. Barnard, 214 Conn. 99, 109 (1990); Issler v. Issler, 250 Conn. 226, 235 (1999). "Courts of law must allow parties to make their own contracts. It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. Whether provident or improvident, an agreement moved on calculated considerations is entitled to the sanction of the law." [Internal citations omitted.] Crews v. Crews, 295 Conn. 153, 169 (2010). Accordingly, the court is not precluded from entering an order based upon an oral agreement, after a full canvass in open court with the presence of counsel.
Moreover, where the parties have set forth the essential terms of an agreement in a clear and unambiguous fashion, whether in writing or orally on the record, the court should enforce the agreement. In a decision regarding the power of the court to enforce an oral agreement reached during the course of a trial, the Connecticut Supreme Court held that: "Summary enforcement is not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial." Audubon Associates Ltd. Partnership v. Barclay Stubbs, 225 Conn. 804, 812 (1993).
The court further held that: "A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous . . . Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court's authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings." [Internal quotes omitted.] Audubon Associates Ltd. Partnership v. Barclay Stubbs, supra, 811-12. This same principle was applied by the Appellate Court in a more recent decision, where that court held that: "A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous . . . A settlement agreement is a contract among the parties . . . Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion . . . The proper inquiry focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation . . ." Vance v. Tassmer, 128 Conn.App. 101, 109-10 (2011). "Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." Creatura v. Creatura, 122 Conn.App. 47, 52 (2010).
The foregoing notwithstanding, the husband argues that Article 14.3 of the original Agreement contains language to the effect that any modification or waiver must be in writing and executed with the same formality as the original Agreement, and therefore, the oral agreement is unenforceable. At the time of the dissolution of marriage, the court incorporated the Agreement in its decree. The husband's argument is a classic "red herring." The reasons that the typical separation agreement calls for modifications to be made in a formal, duly-executed writing include, among other things, the protection of the rights and interests of each party and the integrity of the court process, as well as to avoid any future misunderstanding between the parties that could generate additional litigation.
In some instances, an oral or written agreement between the parties may be binding upon each, "even before the court has examined it pursuant to § 46b-66." North v. North, 183 Conn. 35, 38 (1981). Nevertheless, whether in writing or not, once an agreement is incorporated in the judgment, the underlying decree "cannot not be modified by acts of the parties without further decree or order by the court." Albrecht v. Albrecht, 72 Conn.App. 137, 146, 151, cert. den., 212 Conn. 813 (1989). In other words, under either scenario, the terms of the agreement would have to be passed on by the court. However, whereas here, the parties appeared in open court to recite the terms of their agreement, with counsel present, with a full canvas, the requisite formality and protections are inherent in that very process. "Waiver involves an intentional relinquishment of a known right." It may be either express or implied from the conduct of the parties themselves, and it is a question of fact. Ford v. Ford, 72 Conn.App. 137, 141-42 (2002). Under all the facts and circumstances, the actions of the parties in this instance constituted a waiver of the provisions of Article 14.3 of the Agreement.
"The power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage. [Citation omitted.] These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute." Porter v. Porter, 61 Conn.App. 791, 797 (2001). Under all of the facts and circumstances of this case, not the least of which is the fact that the litigation of this issue, that has been pending for more than five years, should and would finally be at an end, it is equitable and appropriate to enforce the oral agreement of the parties reached on March 8, 2011.
FINDINGS
The court, having heard the parties and considered the evidence, hereby finds as follows:
1. That the oral agreement reached by the parties, with the assistance of their attorneys, on March 8, 2011, is fair and equitable under all the circumstances. General Statutes § 46b-66.
2. That the Agreement was reached by the parties while the matter was on trial; and that it resolved all outstanding issues encompassed by the litigation, including the issue of counsel fees.
3. That at the time of the hearing both parties were present in court with their respective attorneys when the Agreement was read into the record, followed by a canvass of each party by the court as to (a) advice of counsel; (b) their understanding of its terms; (c) lack of any duress or compulsion; and (d) its fairness.
4. That at the time of the hearing, the court had available current information regarding the finances of the parties.
5. That the plaintiff husband is an attorney and a member of the Connecticut Bar of long standing, and he is presumed to have a basic knowledge and familiarity with court proceedings that is superior to the average litigant.
6. That the oral agreement of the parties, reached with the advice and assistance of counsel, followed by a full canvass by the court, on the record, constituted a knowing waiver of the provisions of Article 14.3 of the Separation Agreement dated August 25, 1995.
7. That following a reading of the terms of the Agreement and the canvass of the parties, the court finds that the terms thereof are clear and unambiguous; and that the oral Agreement of the parties should be summarily enforced.
ORDER
For the reasons set forth above, the defendant's Motion for Modification (#226.00) dated February 6, 2006, is HEREBY GRANTED in accordance with the oral agreement of the parties dated March 8, 2011, as recited in the court record, and JUDGMENT SHALL ENTER THEREON FORTHWITH. IT IS FURTHER ORDERED THAT within two weeks from the date of this Order, counsel for the defendant shall prepare a Judgment File for signature by the court.