Martha Gibson v. Neil W. Gibson (2009)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION FOR CONTEMPT (120), PLAINTIFF'S MOTION FOR CONTEMPT (125), PLAINTIFF'S MOTION FOR COUNSEL FEES (126) AND DEFENDANT'S MOTION TO OPEN AND MODIFY (135)

The record reflects that the parties were divorced pursuant to a separation agreement dated January 4, 2001 wherein the plaintiff wife was represented by counsel and the defendant husband was self-represented.   The separation agreement provided that the parties would share joint legal custody of the two minor children, and that “the defendant shall pay to the plaintiff 20% of his gross annual salary as child support for the two minor children, until the minor child Colin, attains the age of 19.   Thereafter, until the minor child Carly attains the age of 19, the defendant shall pay to the plaintiff 15% of his gross annual base salary as child support.   In addition, as further child support, the defendant shall pay to the plaintiff 20% of his total annual bonus(es) and commissions, over and above his base salary, until the minor child, Colin is 19 ․”

The parties appeared before the court (Shluger, J.) on October 20, 2009 and then to December 15, 2009.   Both parties were represented by counsel.

The court finds the following facts as proven by a fair preponderance of the evidence:

1. The parties were divorced pursuant to a separation agreement dated January 4, 2001 wherein the plaintiff wife was represented by counsel and the defendant husband was self-represented.

2. The party's separation agreement contains the following child support order:  “the defendant shall pay to the plaintiff 20% of his gross annual salary as child support for the two minor children, until the minor child Colin, attains the age of 19.   Thereafter, until the minor child Carly attains the age of 19, the defendant shall pay to the plaintiff 15% of his gross annual base salary as child support.   In addition, as further child support, the defendant shall pay to the plaintiff 20% of his total annual bonus(es) and commissions, over and above his base salary, until the minor child, Colin is 19 ․”

3. At the time of the dissolution, the wife was on unpaid leave from the University of Connecticut earning approximately $53,000 per year.

4. At the time of the dissolution, the husband was employed as a pharmaceutical scientist earning approximately $156,000 per year.

5. At the present time, the husband is the chief scientific officer at Pfizer earning approximately $334,800 per year as his base salary.   In addition, he receives a performance bonus for the preceding year in March of the subsequent year.

6. His 2008 performance bonus, paid in March of 2009 was $94,000.

7. On or about December 2007, the defendant's employer relocated him from New York to San Diego, California.   His New York home was worth approximately $685,000 and his California home, which was substantially similar, cost $1,600,000.

8. On December 31, 2007, within days of his closing on the California home, Pfizer issued him a one-time taxable relocation stipend in the amount of $280,000 to enable him to purchase the California home.

9. In early 2008, Pfizer paid to the defendant relocation expenses in the amount of $25,488.

10. The wife claims that she is entitled to 20% of the $94,000 bonus and 20% of the $280,000 stipend.   She does not claim an entitlement to a percentage of the $25,488 relocation expense stipend.   She also claims that he has underpaid his court ordered child support in the amount of $13,264 which the defendant does not dispute.

11. The court finds that the $280,000 one-time relocation stipend was not a bonus or commission within the plain meaning of the separation agreement.   It was nonrecurring and timed to coincide with the purchase of the home in California so as to make his relocation possible.

12. The court finds that the plaintiff is entitled to 20% of the $94,000 bonus or $18,800.

13. The parties stipulated and agreed that the defendant husband had underpaid his child support in June, July, August and September 2009 in the amount of $3,316 per month or $13,264.

14. Thus, the defendant owes to the plaintiff $32,064.

15. The plaintiff complains in the contempt motion (125) that the defendant has failed to maintain the court ordered life insurance policy.   He does not dispute that fact.

16. The husband argues that he is entitled to a modification of his child support because it did not then and does not now comply with the child support guidelines, it calls for child support through and including the child's 19th birthday, it calls for child support while he is obligated to for the child's college education expenses and that the child support is based on a gross rather than a net income.

17. The husband was ordered to maintain $600,000 of life insurance naming the wife as the beneficiary which has lapsed although he is seeking to reinstate that policy

Legal discussion

“The provisions of a separation agreement become an order of the court when incorporated into the dissolution judgment.  Albrecht v. Albrecht, 19 Conn.App. 146, such 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).  “[The] interpretation of a separation agreement that is incorporated into a dissolution decree is guided by the general principles governing the construction of contracts ․ 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.”  Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008).  Signore v. Signore, 110 Conn.App. 126, 130 (2008).

“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 ․ 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.”  566 New Park Associates LLC v. Blardo, 97 Conn.App. 803, 810 (2006).

“The stipulation for judgment is an agreement by the parties that the Court incorporated into the judgment and is a contract of the parties.”  Sachs v. Sachs, 60 Conn.App. 337, 341-42, 759 A.2d 510 (2000).

“Although it is well established that parties are free to contract for whatever terms on which they may agree ․ it is equally well established that contracts that violate public policy are unenforceable ․ [T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case ․” Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 326-27, 885 A.2d 734 (2005), quoting Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997);  Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999);  Parente v. Pirozzoli, 87 Conn.App. 235, 245, 866 A.2d 629 (2005), citing 17A Am.Jur.2d 312, Contracts § 327 (2004).

The defendant does not appear to argue that the provisions of the separation agreement are contrary to public policy but simply that they are unfair, oppressive or unlawful.

Our Supreme Court has also recognized, however, that the government has an interest in encouraging private agreements that have been incorporated into decrees for dissolution, separation or annulment.   See Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) (strong policy that the ‘private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine’).   Negotiated settlement of these affairs conserves judicial resources and encourages private resolution of family issues.   Additionally, the government has an interest in preserving and enforcing orders that were entered by the courts in dissolution proceedings after a determination that the judgment is fair and equitable.   See General Statutes § 46b-66(a) (court may accept stipulation for judgment only after inquiry and finding that it is fair and equitable under all circumstances).   This conserves judicial resources because the courts are not forced to rework decrees to account for newly raised postjudgment arguments that are based on public policy.   Otherwise, the public would have no confidence in the judiciary to resolve disputes in a conclusive manner.

Finally, it is well and firmly established that “[t]he rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”  Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984);  accord Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005);  Krafick v. Krafick, 234 Conn. 783, 806, 663 A.2d 365 (1995);  Fahy v. Fahy, 227 Conn. 505, 515, 630 A.2d 1328 (1993);  Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989);  Picton v. Picton, 111 Conn.App. 143, 149-50, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009);  Chyung v. Chyung, 86 Conn.App. 665, 668, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005).   Although these cases concern appeals from dissolution judgments crafted by the court, the principle they reiterate is no less true when the parties have negotiated an agreement.   Indeed, stipulations for judgment often include very delicately balanced and carefully negotiated terms in the resolution of important family issues.  General Statutes § 46b-66(a) recognizes this delicate balance and requires courts either to accept or to reject those agreements in their entirety.   When the court approves of a stipulated judgment, it cannot later be set aside “unless the parties agree to do so or it is shown that the judgment was obtained by fraud, accident or mistake.”   Bernet v. Bernet, 56 Conn.App. 661, 666, 745 A.2d 827, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).

In the present case, the parties are both very educated and sophisticated individuals and they reached an agreement after a long negotiation period.   The court, Purtil, J., found the agreement to be fair and equitable.   There is no argument that the defendant was unaware of the full consequences of the terms and conditions of the agreement.

This court does not find that the terms of the separation agreement are unfair, oppressive or unlawful.   These are the terms that the parties negotiated and agreed to.   The agreement is crystal clear that the defendant would pay child support through the age of 19, that the payments would be based on a percentage of his gross pay and that he would pay for post majority educational support.   It is well settled law that “a court must base its child support and alimony orders on the available net income of the parties, not gross income.”  Collette v. Collette, 177 Conn. 465, 469 (1979).   Nonetheless, in the instant case, it is not a court which rendered orders of support based on the gross income;  it was the agreement of the parties.

Finally, the defendant argues that a modification of the child support order is appropriate because the existing order deviates from the child support guidelines.   In this case however, the parties did not apply the guidelines in the original decree and the court ratified their agreements.   The court in Prial v. Prial, 67 Conn.App. 7 (2001), addressed a similar argument and ruled that since the parties did not apply the guidelines in the original decree a modification would not later be justified simply because there continues to exist a deviation.

ORDERS

1. The motion to modify is denied.

2. The motion for counsel fees is granted and the defendant is ordered to pay to the plaintiff $2,500 within 30 days.

3. The defendant is ordered to pay to the plaintiff the sum of $32,064 within 10 days of receiving his 2009 bonus or April 15, 2010 whichever is sooner.

4. The defendant will furnish proof to the plaintiff of his having placed the court required life insurance by April 15, 2010 and furnish annual proof on April 15 of each subsequent year that it remains in full force and effect.

Shluger, J.

Shluger, Kenneth L., J.