Carl Perry v. Marie Perry (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR STAY OF ENTRY OF JUDGMENT AND FOR FURTHER HEARING

I.

NATURE OF THE PROCEEDINGS

On January 4, 2010, the defendant Marie Perry filed a “Motion for Stay of Entry of Judgment and for Further Hearing.”   Pursuant to the said motion, the defendant seeks an order from the court voiding an agreement between the parties dated December 16, 2009 which resolved all issues in the dissolution of their marriage.   The agreement further stipulated that judgment was to enter on January 4, 2010.   The transcript of the proceedings on December 16, 2009 before the court (Calmar, J), reveals that the request to delay judgment until January 4, 2010 was based on the ability of the parties to file a joint tax return.

The defendant alleges that on December 16, 2009, she was “non-compos mentis” as the result of the voluntary ingestion of prescribed prescription medication, and a pre-existing psychological condition.   She alleges that as the result of said circumstances, and other factors, she was in a “dissociative state” that rendered her unable to fully understand or comprehend the nature of the proceedings before the court (Calmar, J) on December 16, 2009.   In addition, the defendant claims that she was unable to understand or comprehend the terms of the agreement between the parties which was entered into the record that date.

The plaintiff objects to the motion and seeks to have judgment enter pursuant to the agreement.   On April, 19, 2010, a hearing was held on the defendant's motion.   The court heard evidence and exhibits were received into evidence.   Each party requested and was afforded the opportunity to file briefs following the hearing.   In reaching it's conclusions, the court has fairly and impartially considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.

II.

Issue:  Has the defendant satisfied her burden to demonstrate that on December 16, 2009, she lacked the mental capacity to enter into an agreement and understand the nature of the proceedings in court.

III.

DISCUSSION

“[I]n Connecticut, a party may avoid certain contractual obligations on the grounds that at the time they were entered into he or she was mentally incapacitated.”  Cottrell v. Connecticut Bank and Trust Co., 175 Conn. 257, 261 (1978).   The contracts and conveyances of a person noncompos mentis, when not under guardianship, are voidable and not void.  Coburn v. Raymond, 76 Conn. 484, 488 (1904);  Reynolds v. Devers, 34 Conn.Sup. 107, 112 (1977).

The test of mental capacity to make a contract is whether at the time of the transaction, an individual possessed understanding sufficient to enable her to comprehend the nature, extent, and conveyance of the transaction.  Nichols v. Nichols, 79 Conn. 644, 657 (1907);  Wendland v. Santiago, Superior Court, judicial district of New London at Norwich, No. 092110 (January 8, 1991, Teller, J).  In the vast majority of all courts, the question of capacity depends upon whether the allegedly incapable person had sufficient reason to enable her to understand the nature and effect of the act in dispute.   5 S. Williston, Contracts (4th Ed.1993) § 10:8, p. 284-85.  “Since all persons are presumed to be of sound mind, the burden of proving incompetency is on the party asserting it.”  Id., at 308.   The court heard testimony from the defendant, and two of the defendant's treatment providers offered in support of her claims.   The court also heard testimony from the defendant's former attorney, as well as the plaintiff.   As a result, the court makes the following findings of fact.   Dr. Daniel Novak is a family practitioner and the defendant's primary care physician.   Over the last five years, the defendant's prime “presenting problems” are hypertension, asthma, anxiety disorder, neck pain, and back pain.   He prescribed medications, including Xanax and Cymbalta, and managed all of her medications.   Prior to December 16, 2009, Dr. Novak last saw the defendant on October 27, 2009.   Her chief complaints at that time were neck and back pain, as well as increased anxiety due to her pending dissolution of marriage.   He did not see her again until February 12, 2010, over one month following the filing of the instant motion.   The defendant was prescribed a “standard” dose of Cymbalta.   Dr. Novak had no recollection of speaking with the defendant between October 27, 2009 and December 16, 2009, and no appointment was scheduled within that time frame.   During her office visit of October 27, 2009, Dr. Novak did not observe any impairment in the defendant's inability to communicate effectively as to her current status due to the sedation effects of her prescribed medicine.   She was alert and coherent.   He further could not recall the defendant previously expressing concern in the past with regard to her memory, nor did he recall within two years of October 27, 2009, the defendant ever expressing difficulty in understanding information that was communicated to her.   Additionally, with regard to the side effects of the defendant's prescribed medication, Dr. Novak indicated that said side effects decrease over time because the body “gets used to” the medication.   Dr. Novak has treated the defendant's depressive symptoms since 1991.   The defendant was prescribed Cymbalta commencing approximately in 2007, and Xanax “since at least 1995.”   The defendant did not ask to increase her dose of either medication between October 27, 2009 and December 16, 2009.

Dr. Keith Roder, who is a clinical psychologist, has been treating the defendant for approximately ten years.   His primary diagnosis concerning the defendant is Post-Traumatic Stress Disorder having its origin in childhood emotional and physical abuse alleged to have been perpetrated by her father.   The defendant has feelings of inadequacy with an undercurrent of unrealized “survivors guilt” as the result of her mother's death during childbirth.   The defendant has low self-esteem and suffers from forms of depression and anxiety.   The defendant may avoid situations and people due to her feelings of inadequacy.   She may periodically suffer from depression, anxiousness, and sadness, all of which may “ebb and flow.”   During the fall of 2009, Dr. Roder saw the defendant once a week “mainly over the divorce.”   The defendant was prescribed anti-anxiety medication in October, November, and December of 2009.   She was concerned about her financial status post-dissolution of her marriage because of her back condition and the possible need for further surgery.   Dr. Roder saw the defendant once a week in November 2009, and December 1st 10th and 17th.   On December 10th, 2009, the defendant was very oriented and able to intelligently discuss her life situation.   She demonstrated no difficulty in processing information.   Dr. Roder generally described the characteristics of a phenomenon known as a “dissociative state.”   A “dissociative state” is characterized by an individual “remov[ing] themselves from a frightening situation.”   The phenomenon is noteworthy in that an individual in such a state “may not know it” and “might not display it.”   They may even respond to questions.   The vagaries of this phenomenon are such that professional training is required to recognize it as it is occurring.   In addition to training, a patient would have to have provided a past history of such an event, and “have a level of trust” with her treatment provider in order for it to be recognized.   It is possible for a “dissociative episode” to be brought about by a stressful situation.

Dr. Roder was unable to describe anything of a recent nature in 2009 that the defendant said she could not recall.   Dr. Roder counseled the defendant to speak with her attorney if she was feeling anxious about the dissolution proceedings.   A lack of sleep the night before a stressful event would not affect a “dissociative episode,” and Dr. Roder was “not sure” if medication would affect the phenomenon.   Although Dr. Roder has been the defendants clinical psychologist for approximately ten years, and has discussed the stressful events of her childhood and pending dissolution of marriage, she did not at any time suffer a “dissociative episode” in front of him.   The defendant self-reported an event Dr. Roder characterized as a “dissociative episode” that occurred in her childhood, while she was still living with her family of origin.   The defendant is currently age 53.   The defendant never described having a “dissociative episode” to Dr. Roder as an adult.   Although Dr. Roder saw the defendant throughout the entire year of 2009, while the dissolution was pending, and trial was scheduled, he never told the defendant not to sign any documents or participate in court proceeding due to his concerns for the onset of a “dissociative episode” or any other psychological or physical issue.   At no point in his testimony did Dr. Roder state, to a reasonable degree of scientific or medical probability, that the defendant had experienced a “dissociative state” on December 16, 2009 during any of the proceedings at issue.

Attorney Michael Augur represented the defendant in her dissolution action commencing in early 2009.   She was actively involved in all pre-trial conferences, and reviewed his proposed orders as the trial date approached.   They discussed his proposed orders at length, and the defendant had a copy of the plaintiff's financial affidavit.   The defendant was in attendance at a “special masters” pre-trial, and was also in attendance at two separate judicial pre-trials conducted by the court.  (Petroni, J).  The defendant wanted access to Judge Petroni when the second judicial pre-trial was scheduled, and all parties and counsel went into chambers to discuss the case.   The defendant dismissed Judge Petroni's recommendations “out of hand,” and took notes.

The parties were unable to reach a settlement after said pre-trials.   The defendant “was not happy with” all of Judge Petroni's recommendations.   As the trial date of December 16, 2009 approached, Attorney Augur spoke at length with the defendant on December 1, 2009 and December 7, 2009.   The conversations lasted between 1 and 1 1/2 hours each.   Attorney Augur met with the defendant in his office on December 15, 2009.

Ultimately, the defendant liked certain things recommended by the special master, and certain things recommended by Judge Petroni.   She wanted to “cherry pick” from the recommendations.   At all times during pre-trial discussions, the defendant was alert and engaged.   On December 16, 2009, after lengthy negotiations, the parties reached an agreement.   The parties were at the courthouse in separate conference rooms.   The matter had been scheduled for trial that day.   The defendant did not exhibit any unusual behavior, and was coherent and responsive.   Her responses to Attorney Augur were intelligent.   Her main concerns were financial.   The negotiations narrowed the issues between the parties to alimony and cash needed to pay bills.   The defendant actively participated in changes and deletions to the final agreement, and placed her initials to any changes.   For example, the life insurance provision in the agreement was changed from $50,000.00 to $150,000.00 at the request of the defendant.   The most substantial changes to the agreement were those addressing cash to pay the defendant's bills, and were made at the defendant's request.   The defendant needed at least $25,000.00 in cash, and the agreement called for her to receive, following the defendant's input, $40,000.00.   On December 16, 2009, the parties negotiated and renegotiated, but the defendant did not want to be in the same room as the plaintiff.   The defendant was actively involved in the negotiation process through Attorney Augur.   Substantial changes were made in the agreement to satisfy the defendant's concerns.   The defendant did not seem impaired to him, and did not have difficulty understanding the court's (Calmar, J) questions during the canvass regarding the agreement.   The defendant understood the agreement would become an order of the court.   The defendant signed the agreement and initialed any changes.   Attorney Augur was contacted by the defendant subsequent to December 16, 2009.   The defendant had spoken to a “disability advocate,” and friend, Andrea McGovern, and as a result, voiced concerns about the agreement.   The defendant signed a release to allow Attorney Augur to speak with Ms. McGovern.   There was sparse substantive evidence as to the precise role, and relationship Ms. McGovern held with the defendant.   The term “disability advocate” was not further defined.   Following Judge Calmar's canvass of both parties on December 16, 2009, Attorney Augur observed the defendant speaking to the plaintiff and his attorney, but was unable to hear what was said.   The plaintiff corroborated Attorney Augur's account, and indicated that immediately following the courtroom proceedings of December 16, 2009, the defendant approached him.   The defendant addressed the plaintiff and his attorney directly and insulted both of them.   The plaintiff, who had a long term marriage with the defendant, described her as acting coherently and “as she normally did” during the court proceedings of December 16, 2009.

The defendant's testimony, in essence, was that although she acknowledged signing and initialing the agreement, as well as appearing before Judge Calmar, she cannot recall anything of substance regarding the negotiation of the agreement, the agreement itself, signing and initialing the agreement, and Judge Calmar's canvass.   This global lack of recall is the result, she claims, of the onset of a “dissociative state” and the voluntary ingestion of her medication.   The “dissociative state” thus explains her complete lack of recall, and consequently rendered her “non-compos mentis” on December 16, 2009.   This court's review of the transcript of Judge Calmar's canvass of the defendant reveals that the defendant was asked a total of eighteen questions about the agreement.   The defendant was questioned by Judge Calmar and Attorney Augur.   In response to Judge Calmar's inquiry “Do you have any questions for me?” the defendant responded “Not at this time.”   The defendant indicated on the record in the court proceedings of December 16, 2009 that she was “very satisfied with [Attorney Augur's] services.”   She also acknowledged hearing, and understanding all of the questions asked of the plaintiff regarding the agreement.   All questions were answered in an appropriate fashion.

Nevertheless, the defendant argues that, inter alia, that despite no prior adult history of the onset of a “dissociative state,” and despite the evidence previously described herein, she did in fact experience a dissociative state” at all relevant times on December 16, 2009 and consequently has a global lack of memory as to any relevant aspect of the agreement in question.   Therefore the defendant argues that the “dissociative event” rendered her “non-compos mentis” and renders the agreement voidable.   The burden is on the defendant to prove her incompetency.   The court determines, after a careful review of the evidence and relevant case law, that the defendant has failed to meet her burden.   The testimony of Attorney Augur, as well as the defendant's insulting comments to the plaintiff and his attorney, adversely affected the credibility of her testimony regarding a “dissociative state” that affected her memory and ability to reason.   The court does not credit the defendant's testimony, and finds insufficient probative value in the testimony of Dr. Novak and Dr. Roder to support her claims.

The court finds that the evidence fails to demonstrate that the defendant lacked sufficient reason to enable her to understand the nature and effect of the act in dispute.   The court further credits the testimony of Attorney Augur regarding his assessment of the defendant's mental status, and his testimony as to the lengthy pre-trial conversations that occurred with the defendant prior to December 16, 2009.   The evidence regarding the progress of the negotiations on December 16, 2009 is inconsistent with the onset of “dissociative state” by the defendant.   Her conduct on December 16, 2009 was consistent with the posture she demonstrated throughout the special masters pre-trial and the pre-trials with Judge Petroni.   There is nothing about the defendants “crying” or “anger” in the midst of a dissolution proceeding that is unique or uncommon.   The defendant was thoroughly canvassed by Judge Calmar and Attorney Augur as to the terms of the agreement.   She actively participated in all stages of its creation, and signed the final version.   The defendant has not demonstrated she was “non-compos mentis” at any time relevant to the proceedings.

Therefore, for the foregoing reasons, the plaintiff's Motion for Stay of Entry of Judgment is denied, and judgment shall enter pursuant to the terms of the agreement.

ELPEDIO VITALE, J.

Vitale, Elpedio N., J.