Sara Ann Walsh v. Thomas J. Walsh (2011)

MEMORANDUM OF DECISION RE MOTIONS # s 133, 135.01, and 137

The above legal action for a legal separation was commenced with a return date of March 24, 2009.   An amended complaint also seeking a legal separation dated December 17, 2009 was filed to provide for the conservators of the plaintiff to be cited into the action.

The parties through their counsel in this matter reported to the court (Shay, J.) on November 17, 2010 that “entertain us if you will and allow us to put this on the record so that we can go back reduce it to writing, and have a status conference ․ to indicate when we anticipate we could put this on as an uncontested ․ Your Honor, I'm going to take the liberty of reading the agreement into the record just in bullet points.”   Apparently, the defendant was present.   The plaintiff was not present but a guardian ad litem previously appointed for her was present.   The attorney appointed as conservator for the plaintiff was not present nor was the conservator of the person present.

The representation was also made to the court that the conservator of the estate would seek to inquire of the Probate Court as to its need to review the agreement prior to proceeding to a final uncontested dissolution.   There was also a representation made to the court that an inquiry would need to be made with the defendant's life insurance carrier.   It was further stated to the court that there would be a mutual waiver of alimony.   The attorney for the defendant reported back to the court on December 8, 2010 that there was “some very minor language to work out.”   On December 10, 2010 both counsel reported to the court that the language of the separation agreement needed to be finalized.  “The skeleton of the agreement is agreed to.”   The court (Shay, J.) expressed its concern that the parties needed to feel comfortable with an agreement “because ․ we want to make sure there is a proper canvas.”   On December 5, 2010 it was reported to the court that the plaintiff had died.   Upon inquiry from Judge Novack it was noted that Judge Shay did not approve of an order or of an agreement.   It was simply, “Judge, we're stating the deed for the record and we're going to come back.”

The issues before the court are:  Was there an agreement between the parties?   Should the court issue a judgment nunc pro tunc or otherwise enforce the agreement?   Should the action for separation brought by the plaintiff wife be dismissed?

The parties and or their conservator(s) had never been placed under oath.   Neither party was ever canvassed by a court in the presence of their legal counsel.   While a court in a family matter may enter a judgment or an order based upon an oral agreement.  Isham v. Isham, 292 Conn. 170 (2009);  Burke v. Burke, 94 Conn.App. 416 (2006).   There was never a finding by a court that the skeleton agreement was fair and equitable under all of the circumstances as provided for in Section 46b–66 C.G.S. Both of the parties were not present when the proposed outline of an agreement was read into the record.   There is no evidence that the court (Shay, J.) having been presented with an oral agreement between counsel had been provided any financial information regarding the parties.

Therefore, the court sustains the defendant's objection to the plaintiff's motion for judgment dated September 6, 2011, and grants the defendant's motion to dismiss dated September 6, 2011.   The legal action terminated upon the plaintiff wife's death on December 12, 2010.

BY THE COURT

MALONE, J.

Malone, Robert J., J.