W. Scott McIntosh v. Natalie McIntosh (2010)

RULING ON PLAINTIFF'S MOTION FOR POST-JUDGMENT ORDER (# 125)

On August 25, 2010, the plaintiff filed a motion for order, post-judgment, determining that the plaintiff need no longer maintain a life insurance policy for the benefit of the defendant.   The plaintiff contends that his obligation to maintain such a policy ended together with his obligation to pay alimony.   The defendant asserts that the plaintiff is obligated to maintain the life insurance policy for life, unless the defendant predeceases the plaintiff.   The plaintiff's motion for order, post judgment, is granted.

FACTS

This matter came before the court for a hearing on October 18, 2010.   Both parties testified in support of their respective positions.   The parties submitted post-hearing briefs, the plaintiff having filed his brief on November 15, 2010;  the defendant submitted her brief on November 22, 2010.

The relevant pleadings, and the testimony and documentary evidence introduced at the hearing, established that a judgment, dissolving the parties' marriage, entered on December 30, 1994.   The judgment incorporated an agreement, signed by both parties, that addresses the parties' understandings regarding, inter alia, the issues of alimony and life insurance.   The agreement is ten pages in length and is divided into seventeen separate articles.

The agreement provides, at articles 1 and 2, as follows:

“1. Alimony

1.1 The Husband shall pay to the Wife Four Hundred Dollars ($400) per week until September 15, 1997.   At that time, the Husband shall pay to the Wife Three Hundred, Fifty Dollars ($350) per week until the Wife becomes eligible for Social Security.

1.2 Alimony shall be non-modifiable as to amount and duration with the exception of the Wife's remarriage or death.

1.3 Payment shall be made by mail.   The Husband shall mail a check post-dated the fifteenth on the twelfth day of each month.   A one-time payment of $288.89 (representing 5/30ths of the monthly payment to compensate the Wife for the five delay in check clearing by the bank) shall be made to the Wife on the date of the final hearing.

2. Life Insurance

2.1 The Husband shall maintain and pay the premiums when due on policy # 4656348 with the Travelers.   He shall name the Wife as the irrevocable beneficiary and collateral assignee of $100,000 said policy.   The Wife shall execute a release of all ownership rights of any amount of life insurance exceeding the $100,000 to the Husband.

2.2 The Husband shall terminate his presently held Travelers policy # 7118913.   The present cash surrender value of said policy is approximately $3,299.00.   The cash surrender proceeds shall be shared by the parties.   The Husband shall pay to the Wife one-half ($1,649.50) of the proceeds from said policy at the time of the final hearing.   The Husband shall provide to the Wife evidence of the amount of proceeds received by him by sending her a copy of the statement from Travelers.”

At the October 18, 2010, hearing, the plaintiff introduced, as plaintiff's exhibit (“PX”) 1, an email message that he sent to the defendant on January 2, 2010, reminding her that, pursuant to the divorce decree, his obligation to make alimony payments would come to an end after the September 2010 payment, since she would become eligible for Social Security payments in October 2010.   He further stated, “I wanted to provide you with as much notice as possible.   If you disagree, let me know.”   In that same exhibit, the defendant's reply appears.   Dated August 1, 2010, it states:

“After meeting with a Representative from Social Security and my attorney, the following conclusions have been drawn:  I become eligible to collect Social Security November 1, 2010.   Therefore, your final alimony check payment to me will be dated 10/17/10 in the amount of $733.80 (10/17-10/31-15 days).   Also, per our divorce agreement you must continue to maintain and pay premiums on a $100,000 Life Insurance Policy in your name which [sic] I am ‘irrevocable beneficiary and collateral assignee.’  (No. American Co For Life & Health Insurance-Policy # LW00109340).”

Having received the foregoing reply from the defendant, the plaintiff filed his motion for order, seeking a determination that the plaintiff's obligation to maintain a life insurance policy for the benefit of the defendant terminated at the same time that he was no longer obligated to make alimony payments, which was November 1, 2010.   Following the hearing, the court directed the parties to file simultaneous briefs on November 15, 2010.

At the hearing, the defendant claimed that the plaintiff not only had a continuing-and in her view, lifelong-obligation to maintain a life insurance policy for her benefit, but also claimed that he continued to owe alimony payments since she is “not eligible” for social security benefits.   The defendant testified that one is not eligible for social security benefits until one applies for them, and she had elected not to apply for benefits.   However, in the course of her post-hearing research, the defendant discovered that she became eligible for social security benefits when she turned 62 years of age and the plaintiff became entitled to retirement benefits.   Since both events have come to pass, the defendant has now abandoned her claim that the plaintiff has any further alimony obligations.

The plaintiff asserts that Section 2.1 of the agreement is ambiguous in that it does not include a date as to when the obligation to maintain the life insurance policy will terminate.   The defendant concludes that the agreement is unambiguous.   She relies upon the Merriam Webster's Collegiate Dictionary for the proposition that the word “maintain” means “to continue or persevere in or with;  to carry on.   To keep possession of ․” Thus, the defendant concludes, the plaintiff must “continue and carry on and as such the insurance policy should continue and be carried on.”

The difficulty with the defendant's argument is that the agreement makes no specific reference to any date on which the plaintiff's obligation to “maintain” the policy might conclude.   The agreement could have stated that the life insurance obligation continued until the alimony obligation concluded;  it could as easily have stated that the life insurance obligation continues throughout the life of the plaintiff.   The agreement does not include either of the latter statements.   Thus, the court finds that the agreement is ambiguous with regard to the intended duration of the life insurance policy obligation.

The separation agreement is a contract, and it will be construed in accordance with the principles governing contracts.  Isham v. Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009).   The intention of the contracting parties must be ascertained from the language that was used “interpreted in the light of the situation of the parties and the circumstances connected with the transaction.”  Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990).  (Citation omitted).   When an ambiguity is found, “[t]he contract must be viewed in its entirety, with each provision read in light of the other provisions ․ and every provision must be given effect if it is possible to do so.”   Russell v. Russell, 95 Conn.App. 219, 222, 895 A.2d 862 (2006).  (Citations omitted).  “[W]hen searching for a party's intent in a separation agreement, it is appropriate to look to the circumstances of the parties at the time the agreement is formed.”  Isham v. Isham, 292 Conn. 170, 185.

The plaintiff offered parol evidence, not to contradict the terms of the agreement, but to explain the ambiguity regarding the duration of the life insurance obligation.  HLO Land Ownership Associates, Ltd. Partnership v. Hartford, 248 Conn. 350, 358, 727 A.2d. 1260 (1999).   At the hearing, the plaintiff offered PX 2, a letter dated July 1, 1994, from the plaintiff's counsel ¹ to the defendant's counsel.   That letter set forth a proposed settlement offer, including an offer to pay alimony for a five-year period.   Immediately following the latter offer, the letter proposes that the plaintiff “is also, willing to maintain Mrs. McIntosh as irrevocable beneficiary of the $100,000 policy for a period limited to the term of the alimony.”  (Emphasis added).

The court notes that, in the agreement, the discussion regarding life insurance follows, immediately, the discussion regarding alimony.  Levine v. Advest, Inc., 244 Conn. 732, 753, 714 A.2d 649 (1998) (“The individual clauses of a contract ․ cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part”);  Scinto v. Sosin, 51 Conn.App. 222, 239, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963 (1999) (“A contract is to be construed as a whole and all relevant provisions will be considered together”).  (Citations omitted.)   The plaintiff testified that it was his understanding that his obligation to maintain the life insurance policy was coterminous with his obligation to pay alimony.   PX 2 supports his understanding.   It appears to the court that the life insurance policy was intended to protect the defendant's alimony payments by providing a mechanism to compensate the defendant in the event that the plaintiff died before the alimony obligation concluded.

At the October 18, 2010, hearing, the plaintiff, who has experience in the insurance industry, supported his position by articulating the near-absurd result that would obtain if he were compelled to maintain a term life insurance policy throughout his entire lifetime.   He testified that the current rates for such insurance would climb dramatically as he ages, as follows:  “age 66, $300 a month;  age 70, $403 a month;  age 80, $1,410 per month;  age 85, $2,210 a month;  age 90, if I'm lucky to live that long, $4,230 per month.”   He was asked, “Would you ever have agreed to a provision in the separation agreement obligating you to pay a $100,000 life insurance policy for the rest of your life?”   The plaintiff answered, “Absolutely not.”

For all of the foregoing reasons, the plaintiff's motion is granted.   The plaintiff's obligation to pay alimony terminated on October 10, 2010, the date the defendant became 62 years of age.   The plaintiff's obligation to maintain a life insurance policy for the benefit of the defendant terminated on that same date.

BY THE COURT

John A. Danaher III

FOOTNOTES

FN1. Counsel representing the plaintiff in 1994 is reportedly retired and residing in Florida;  counsel representing the defendant in 1994 is reportedly deceased.   The court attempted to locate transcript notes from the December 30, 1994 hearing before the Hon. Walter Pickett, Jr. (who is also deceased).   Perhaps not surprisingly, the transcript notes cannot be located..  FN1. Counsel representing the plaintiff in 1994 is reportedly retired and residing in Florida;  counsel representing the defendant in 1994 is reportedly deceased.   The court attempted to locate transcript notes from the December 30, 1994 hearing before the Hon. Walter Pickett, Jr. (who is also deceased).   Perhaps not surprisingly, the transcript notes cannot be located.

Danaher, John A., J.