Sheila Lamb v. Graham Brice (2011)

MEMORANDUM OF DECISION

This most interesting case involves the interpretation and enforcement of an order entered in The Supreme Court of Bermuda, Divorce Jurisdiction on December 13, 2006.   The parties, who had married on June 30, 1983 in Manama, Bahrain, were divorced in Bermuda in 1997.   Post-judgment litigation regarding the payment of their daughter's college education took place in 2006 culminating with the order of December 13, 2006, referenced above.   Both parties now reside in Connecticut.   The court (Prestley, J.) previously ruled on the plaintiff's motion for declaratory judgment and found “the Judgment and subsequent Orders entered by the Supreme Court of Bermuda are valid and enforceable in Connecticut.”

Presently there are two questions before the court:  First, to interpret the meaning of the 2006 order regarding the defendant's duty to pay one-half of the daughter's student loans, and second, does the defendant still owe plaintiff's Bermuda counsel a fee that was ordered by the Bermuda trial court? ¹

Addressing the second issue first as that is the simpler task:  The plaintiff alleges that the fee to her Bermuda counsel was never paid and the defendant says that it was.   The defendant has not offered any evidence of either payment of the obligation or forgiveness of the obligation.   He testified that the matter had been resolved between himself and plaintiff's Bermuda counsel, but absolutely no evidence of that was offered to the court.   The plaintiff alleges that the obligation is unpaid.   Since the payment was a court order issued by the original trial court, it is the defendant's obligation to prove that the obligation has been satisfied.   He has not done that.   Since the plaintiff has offered no evidence of any additional cost to her as a result of defendant's apparent noncompliance and has not requested interest on the unpaid sum, the court will not address that issue.

The interpretation of the orders regarding the payment of college loans is a more difficult task.   The language of the orders ² does leave room for more than one interpretation.   The orders all include the phrasing:  The defendant “shall repay to the lender one-half of [the loan amount] and any interest accrued thereon as and when Lauren's future circumstances require that loan to be repaid ” (emphasis added).

The parties agree that under the rules and regulations of the loan program, their daughter does not have to begin to make loan payments until her income reaches a certain level.³  Once that threshold is met, the loan is repaid automatically through the government's payroll withholding mechanism.   It is also important to note that if one's annual income falls below the threshold amount, the obligor may be entitled to a refund of the payments that were withheld.

The defendant argues that this language was specifically used by the court to allow him to pay or not pay in accordance with the demands made upon his daughter by the loan program.   It allows him to reimburse his daughter for one-half of what is withheld from her pay.

The plaintiff's position is that once Lauren's income exceeds the threshold amount and she is obligated to begin payments, the defendant is liable for one-half of the total amount plus the interest accrued.   He is free to make arrangements with the lender for installments, but he must assume the liability for the portion attributed to him by the Bermuda order.

The defendant's interpretation is strengthened by the order's use of the phrase “as and when” in reference to the daughter's income.   If it said simply “when,” the meaning might be clearer;  the use of “as and when” gives the court pause since the repayment program rules allows the repayments to cease if the daughter's income drops back below the threshold amount.   That might suggest that the trial court in Bermuda wanted the defendant's repayment obligation to track the daughter's obligation.   If she did not have to pay;  he would not have to pay.

However, the order also directs quite clearly, and without any ambiguity at all, that the defendant's obligation is to “repay the lender” when the threshold is met.   He was not given the option of reimbursing the daughter.   It is his obligation to satisfy the debt for the benefit of his daughter.   The direct and clear obligation to repay the lender overcomes any possible ambiguity of the other phrase.   If the defendant can make payment arrangements with the lender the order does not appear to prevent that.   Such arrangements for periodic installment payments would not violate the order as long as the daughter is relieved of the liability once repayment must commence.

Although the pleadings request legal fees for the prosecution of the action, no evidence was offered during the hearing as to the nature of those fees.   Accordingly the court will take no action in that regard.

The defendant has argued, but presented no evidence to the court, that he may lack the financial ability to make the required payments.   That issue is not presently before the court.   The orders of the Bermuda court relied on the financial resources of the parties at the time the order was entered.   The question before this court is not his ability to pay or the fairness of the orders.   Such matters were decided in Bermuda several years ago.   The instant issue, as stated earlier, is the court's interpretation of the order.

Accordingly, the court makes the following findings:

A.  There is no evidence that the legal fees that were ordered paid by the defendant for the benefit of the plaintiff have been paid or forgiven;

B. The orders regarding payment of a portion of the student loans of Lauren Brice require payment directly to the holder of the notes and do not permit a reimbursement plan to the daughter;

C. That said loans must be repaid when Lauren Brice, a resident of the United Kingdom, is receiving an annual gross salary of £15,000;  and

D. No evidence has been presented that said loans are now due and payable by Ms. Brice.

Having heard the matter the court HEREBY ORDERS:

1.  The defendant is to pay the plaintiff the sum of Five Thousand Dollars ($5,000) as a contribution to her legal fees from the Bermuda proceedings.   Said payment is to be made not later than thirty (30) days from the date of this order;

2.  The defendant is to relieve his daughter, Lauren Brice, of one-half (1/2) of her student loan obligations, including interest, penalty fees and any other costs that may have accrued due to a failure of timely payment, within sixty (60) days of written notice to him that said loans are now subject to repayment under the provisions of the loan program and the notes;

3.  The defendant must reimburse his daughter for one-half (1/2) of any payments she has made against said loan obligations, either directly or through payroll withholding, within thirty (30) days of written documentation of such payments;  and

4.  No legal fees are awarded to either party.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. There had been a third issue as well.   The defendant filed a motion to dismiss the plaintiff's case.   That motion was denied during the hearing on February 28, 2011..  FN1. There had been a third issue as well.   The defendant filed a motion to dismiss the plaintiff's case.   That motion was denied during the hearing on February 28, 2011.

FN2. There were several provisions regarding the student loans because at that time the daughter of the parties was still in her studies so there were past loans, current loans and anticipated future loans with which the court had to deal..  FN2. There were several provisions regarding the student loans because at that time the daughter of the parties was still in her studies so there were past loans, current loans and anticipated future loans with which the court had to deal.

FN3. The daughter is a resident of the United Kingdom and that level is a gross annual salary of £15,000..  FN3. The daughter is a resident of the United Kingdom and that level is a gross annual salary of £15,000.

Adelman, Gerard I., J.